Family Law & Divorce Law

MAINTENANCE OF WIFE AND CHILDREN

Who can apply for maintenance?

Under section 69 of the Women’s Charter, you can apply for maintenance

  • for your child from the other parent, if he or she neglects or refuses to provide your child with reasonable maintenance;
  • for yourself from your husband, if you are a married woman whose husband neglects or refuses to provide you with reasonable maintenance;
  • for yourself from your parent, if you are over 21 and you are still a full-time NSman or student.

The Court can also make maintenance orders for a wife and children in pending divorce proceedings, or as part of final orders in the ancillary matters in divorce proceedings under the Women’s Charter.

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Do I have to maintain my child if the Court has granted care and control to the other parent?

Under the Women’s Charter, the responsibility of maintaining the children lies with both parents. This does not change if the parents divorce, or if the children now live with just one parent. The Court normally orders the parent without care and control to pay the children’s maintenance to the parent with care and control.

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What factors does the Court consider in making a maintenance order?

The Court is duty-bound to consider all the circumstances of the case.

Sections 69 and 114 specify some particular issues that the Court will consider. These include:

  • the financial needs of the wife or child;
  • the income, earning capacity (if any), property and other financial resources of the wife or child;
  • any physical or mental disability of the wife or child; and
  • the age of each party to the marriage and the duration of the marriage.

You, as well as the respondent to your application, will be asked to produce the relevant documents in Court to enable the Judge to make a decision on the appropriate amount of maintenance to be ordered.

The usual documents include:

  • lists of monthly personal expenses, and lists of such expenses for the children, if relevant;
  • salary slips;
  • income tax returns;
  • documents evidencing any debts;
  • receipts for household, personal and children’s expenses; and
  • any other documents that may be relevant to the parties’ means.

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Can I withhold access if the other parent has not been paying child maintenance?

No. The Court considers maintenance issues and parenting issues separately. You are still bound by the Court order to allow the other parent to have access to the children even if he or she is not making regular maintenance payments.

You may wish to apply to Court to enforce the maintenance order against the other parent.

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Can I withhold maintenance if the other parent has not been allowing me to see the child?

No. The Court considers maintenance issues and parenting issues separately. You must still pay maintenance for your children, even if your former spouse is not allowing you to see them.

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RELATED ARTICLES:

Division of assets and maintenance

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