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February 20, 2019

A Spousal Maintenance Order is a debt

Times are indeed changing. The once upon a time famous house wife doctrine is becoming extinct. These days unlike in the past, with the gender equality drive, women are taking up the big jobs too. They are the CEOs of the big entities. On the other end of the equation, a few men have started accepting the doctrine of becoming house husbands. The parties in the marriage are exercising equality. The women are becoming the sole bread winners.

Trouble begins when the marriage is not working. Then the issue of marital support and maintenance becomes a real issue once the marriage is dissolved.

The law takes care of the spouse who finds him/her self in that state. She/he has to continue enjoying the dignity she had during the marriage. He/she must continue being maintained by the ex-spouse in the same standard like they enjoys in the marriage. Knowing very well that an estranged spouse will usually not want to maintain their ex, the law has given the courts powers to issue maintenance orders so as to uphold, protect, promote and fulfill the dignity of the dependent spouse.

The parties in a marriage are equal at the time the marriage comes to an end.

Article 45(3) of The Constitution provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.

Section 77 (1) of The Marriage Act provides that, the court may order a person 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.

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.

It is instructive to note that Section 77 uses the word a person which simply means a wife can be condemned to maintain an ex-husband. The order can be varied, can lapse and or can be revoked by the court upon the happening of certain events.

Section 78 of The Act provides that 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 the re-marriage of the beneficiary 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 re-marriage of the beneficiary of the order.

The court may revoke or vary a subsisting order for maintenance of any kind, whether secured or unsecured, if it is satisfied that the order was based or obtained as the result of any misrepresentation or mistake of fact or that there has been a material change of circumstances since the order was made.

The court may vary the terms of an agreement as to maintenance between spouses wherever made if satisfied that there has been a material change of circumstances since the agreement was made despite any provision to the contrary contained therein.

The parties can also vary the maintenance mutually.

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 respect of, any debt or claim.

The maintenance order and entitlement takes the shape of a civil entitlement and a debt to the ex spouse who has been ordered to maintain the other. It follows him whether he/she becomes bankrupt or whether he/she is alive or dead. You must remember that he who sits on their rights cannot be helped by that law. You must pursue your entitlement diligently once the court issues an order.

The 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.

The debt connects to The Law of Succession in the circumstances.

Some people are known to act before harm comes their way. Some spouses used to dispose of their property whenever they saw the marriage falling apart in fear of being condemned to maintain their spouses. This avenue and or safety valve has been shut down by Section 83 (1) of The Act which provides 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.

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