The Court may order a husband to pay maintenance to his wife/former wife;
- when granting the decree of divorce or judicial separation; or
- if after a decree declaring her presumed to be dead, she is found to be alive.
The Court may also order the wife to pay maintenance to her husband/former husband if he is unable to earn a living due to mental or physical injury or ill-health and the Court is satisfied that having regard to her means, it is reasonable to order so.
In deciding the sum for maintenance, the Court shall consider the following facts:
- the future and present income, property resources and earning capacity of both parties;
- the financial needs of both parties;
- the degree of responsibility which the Court apportions to each party for the breakdown of the marriage.
The Court may order that the person liable to pay maintenance to provide security to guarantee payment of such maintenance.
An agreement for payment of a capital sum (whether money or other property) in settlement of all future claims to maintenance is not effective unless it has been approved by the Court and when so approved is a good defence to any claim for maintenance.
An order for maintenance shall expire or cease to have effect:
- if the divorced spouse in whose favour the order was made remarries or lives in adultery with any other person;
- where the maintenance was unsecured, on the death of either party; or
- if the maintenance was secured, on the death of the spouse in whose favour the order was made.
The Court may at any time and from time to time vary or rescind any order for maintenance upon application by either party where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances as such substantial increase in the salary/income of either party, change in health conditions or remarriage of one party.
You may also make an agreement for maintenance. However, the Court may at any time and from time to time vary the terms of such an agreement where it is satisfied there has been material change in the circumstances notwithstanding any provision to the contrary in such agreement.
The right of any divorced person to receive maintenance from his or her former spouse under an agreement also ceases when he/she remarries or lives in adultery with any other person unless the agreement states otherwise.
Maintenance payable to any person under the Court order cannot be assigned, transferred and it is not liable to be attached requested or levied upon for any debt or claim whatsoever.
Arrears of maintenance can be recovered as a debt from the defaulter;
- if the defaulter is dead and the arrears accrued due before his/her death can be claimed form his/her estate;
- if the arrears accrued due before the death of the wife or husband entitled to it, then her/his personal representative can make a claim for it.
- if the arrears accrued due before the making of a receiving order against the defaulter it should be provable in his or her bankruptcy.
The maximum period for which arrears can be claimed is three (3) years before the claim is filed.
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