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November 14, 2018

Maintenance after the end of a marriage

The spouse who is able and economically empowered is expected to maintain the other spouse. In any event parties in a marriage are equal at, during and after the marriage. The Marriage Act 2014 provides an Act of Parliament to amend and consolidate the various laws relating to marriage and divorce and for connected purposes. This includes the regulation of maintenance. Under Section 77 of The Marriage Act 2014, the court can order one to pay maintenance to a spouse or a former spouse— (a)if the person has refused or neglected to provide for the spouse or former spouse as required by this Act, (b)if the person has deserted the other spouse or former spouse, for as long as the desertion continues, (c)during the course of any matrimonial proceedings; (d)when granting or after granting a decree of separation or divorce; or if, after making a decree of presumption of death, the spouse or former is found to be alive.

Under the Act the court may order the payment of maintenance to a spouse or former spouse where a decree of separation, divorce or presumption of death is issued by a foreign court and the court may declare that the decree of separation, divorce or presumption of death is effective for the purposes of this section. Under Section 78 of the Act except where an order for maintenance of a spouse is expressed to be for any shorter period or where any such order has revoked and subject to section 79, the order shall lapse— (a)if the maintenance was unsecured, on the death of the spouse; (b)if the maintenance was secured, on the death of the spouse in whose favour it was made; or (c)where the person being maintained is subsequently able to support himself or herself.

An order of maintenance shall lapse upon the remarriage of the beneficiary of the order. One cannot be maintained upon remarriage since the spouse who was being maintained is obviously maintained by their new spouse.This is fair. The amount the court orders a spouse to pay as maintenance is obviously money intended for the spouse to give them a lifeline and a source of funds for survival. The amount is thus insulated and protected by the law.

Section 81 of The Act provides that maintenance payable to a person under an order of the court shall not be assigned or transferred or liable to be attached, sequestrated or levied upon for, or in lapsing of maintenance; Termination of an order of maintenance; Revocation and variation of an order for maintenance and assessment of maintenance, respect of, any debt or claim.

One must not sit on the rights.The law does not come to the aid of the indolent. Once the court grants you an order, you must pursue your maintenance entitlement vigilantly. Section 82(1) of The Act provides that despite any other period of limitation prescribed by the Limitation of Actions Act, no installment of maintenance shall be recoverable in proceedings instituted after a period of three years from the date upon which the installment accrued.

Maintenance is a very interesting concept that is capable of haunting you during your lifetime, when you are in financial hardships or bankrupt.

It follows you to your grave and can even feature in the rights or liabilities of your Estate. Section 82 (2) provides that Subject to subsection (1), arrears of unsecured maintenance, whether payable by agreement under an order of the court, shall be a civil debt recoverable summarily or, where they accrued due before the making of a receiving order against the party in default, shall be provable in subsequent bankruptcy proceedings and where they accrued before death, shall be a debt from the estate of the deceased. (3)Subject to subsection (1) arrears of unsecured maintenance which accrued before the death of the person entitled shall be a civil debt recoverable summarily by the legal personal representative of that person.

Some spouses are known to dispose of property so as to evade spousal maintenance. The arm of the law is long. The court can look into your conduct for the last three years to assess whether you sold property to defeat a maintenance claim by your spouse.

Section 83(1) of the Act stipulates that the court may, if it is satisfied that a disposition of property has been made by the spouse or former spouse of the person by or on whose behalf the application is made, within the preceding three years, with the object on the part of the person making the disposition of reducing the means to pay maintenance or of depriving a spouse of any rights in relation to that property , or is intended to be made with any such object, on application, set aside the disposition or grant an injunction prohibiting that disposition, as the case may be.

(2)Where the disposition of property under subsection (1) is by sale to a bona fide purchaser for value, the court may grant orders as though the sale had taken place. (3)In this section, “disposition” includes a sale, lease, mortgage or other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made from money or monies worth to or in favour of a person acting in good faith and in ignorance of the object for which the disposition is made.

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