FAMILY LAW 2.2 MAINTENANCE (ANCILLARY RELIEF 2)
Maintenance in this sense connotes support. E.g. #20,000 per month to the wife upon divorce. Maintenance under Section 70 of the Matrimonial Causes Act is an ancillary relief which the High Court may grant in favour of either party of the marriage and (or) children of the marriage.
Meaning that the wife or husband may be awarded maintenance or ordered to maintain the other party.
At common-law, this concept was also employed by making the wife an agent of necessity for her husband. She could pledge her husband’s credit to get necessaries based on his standard of living. This relationship could arise where she is not being provided for or has been deserted by her husband. The agency relationship may cease to exist/terminate in deserving instances. Like where; –she contracts on her own behalf/authority, -the seller is aware of her husband’s death, -she has enough provisions, -the goods purchased are not necessaries, -she commits adultery or divorces her husband.
Parties may agree on maintenance but they cannot oust the jurisdiction of the court to review their agreement-Fowkes V Fowkes.
Maintenance is divided into two viz: maintenance per se and maintenance pendent lit.
MAINTENANCE PER SE is provided under Section 70(1) of the Matrimonial Causes Act thus:
Subject to this Section, the court may in respect to proceeding in respect to the maintenance (per se) of either party to or the children of the marriage, make such order as it (discretionarily) deems proper having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
Children of the marriage as used in the provision means issues of the marriage provided they are less than 21 years of age.
In Olu-ibukun V Oluibukun, the Supreme Court noted the improvements brought about by Section 70(1): – It does not use the word; “alimony” –It does not utilise or provide for the one-fifth rule (i.e. husband providing 1/5 of his property), – the remedy is open to either party of the (statutory) marriage as opposed to the common law position where it was only the wife that was entitled to maintenance.
MAINTENANCE PENDENT LIT: Is provided under Section 70(2). Unlike maintenance per se (which is the actual order), maintenance pendent lit is an interim order instituted with leave of the court. As was noted in Willds V Willds it seeks to maintain (the standard of living which the parties had been accustomed to) until the litigation is concluded. The conclusion of the case or death of either spouse brings the order to an end-Dejonwo V Dejonwo.
In granting maintenance, the court would consider various things viz; the means, earning capacity, conduct of the parties and other considerations in making the order of maintenance-Section 70(1). We take them one by one:
*The means of the parties: includes (amongst others); liquid cash, capital assets (Rogers V Roger), share in company, investments, contingent and prospective assets of the parties-Negbenebor V Negbenegbor. The stability of the husband would also be taken into consideration-Oluwan V Oluwan.
*Earning capacity of the parties: Including the potential earning capacity. In McEwan V McEwan the wife was awarded 6 pounds a week which was the total of the husband’s income. The court held that he had the potential to earn more. In Griffith v. Griffith E5,000 per annum potential earning capacity was imputed to a man who had been unemployed for more than 3 years. In my opinion, such imputation of “potential earning” is punitive. In was taken to in reverse in Ajakpe V Ajakpe where the court considered that the potential earning capacity of the 60 years old wife was low and advocated that the husband should make a more generous maintenance.
*Conduct of the Parties to the marriage. Not every conduct should be noted except where gross and obvious-Per Lord Denning in Wachtel V Wachtel. A conduct is gross and obvious when (in the interest of justice) it ought not be disregarded in making a maintenance order-Per Lord Cairns in Harnett V Harnett. Conduct may make a party get more or less than is normally due. The courts have found gross misconduct where: the husband committed adultery with the wife’s daughter in-law in the matrimonial home-(Dixon V Dixon)… A wife fired a shot-gun at her husband-Armstrong V Armstrong… Where the husband inflicted serious and long-lasting injuries on the wife-Jones V Jones… See also Onyia V Onyia, Nakander V Nakander.
*Other relevant considerations. This broadens the court’s discretion based on the facts and circumstances of each case. In Tomkins V Tomkins, the financial standing and standard of living of the parties were taken into account. In Ajakpe V Ajakpe and Olu-Ibukun V Olu-Ibukun the court also considered the amount of time/years the parties had spent together. In Dawodu V Dawodu, the court considered the moral duty of care which children should owe to their parents (Remember that maintenance can be made in respect of spouses or children of the statutory marriage).
Note that the maintenance could be a lump sum (As was done in Okala V Okala) or payment by instalment (Igeabuchi V Igeabuchi).
:: Mere granting of a decree against a spouse does not disentitle him/her from maintenance- Section 70(3). E.g. court rules in favour of the husband does not mean that the same court cannot order him to pay the wife maintenance.
Section 70(4) provides that children of the marriage above 21 cannot be maintained unless the court deems it proper to do otherwise. The 21 years is construed as at the time of making the order-Osborne V Osborne.
We move on to:
MAINTENANCE AT CUSTOMARY LAW: The husband (provides for and) maintains the wife during the subsistence of the marriage. He no longer owes her this obligation when the marriage is dissolved. In Adeleke V Adeyinka (unreported 1976), the customary court refused to grant maintenance, holding that such allowance to a divorced woman is contrary to the custom.
Note that The old common-law rule was that maintenance that is paid should bring the woman’s income up to one third of the husband’s income is irrelevant in our law as Section 70 provides no hard and fast rule but just considerations to be taken. Although Lord Denning in Wachtel V Wachtel posited that the one third rule should be a starting point bearing in mind that it is not a rule nor the proportion to be finally awarded.
Writers have argued that maintenance is foreign to Nigerian belief and does not reflect our social background. Thompson J posited in Akinsemoyin V Akinsemoyin that, considering the struggle a man goes through in paying the wife’s (exorbitant) bride price and marrying her, maintenance should only be paid in exceptional circumstances where the wife is unable to fend for herself due to infirmity or ill health. However, in my opinion, bride price is not an essential element of statutory marriages which Section 70 applies only to. Moreover, in the Nigerian reality, the wife is the disadvantaged party (often on the receiving end)… refusing maintenance would therefore work further hardship on women.
Furthermore, it is disappointing to know that the maintenance award under Section 70 Matrimonial Causes Act does not apply to customary and Islamic Law marriages. Professor Nwogugu in his article: What Next in Nigerian Family Law? Submitted that our law should seek to include Customary and Islamic Law marriages to the protection of the Act and remove the classification. I concur.
In conclusion, maintenance does NOT seek to “share a spouse’s fortune”. Section 5 of the Matrimonial Proceedings and Property Act 1970 notes that maintenance seeks to place the parties (so far as practicable) in the financial position they would have been if the marriage had not broken down.
Applying the discussion so far to our excerpt… you know that Titi might go back to selling akara if the court orders a divorce. From the facts, Jide has risen Titi’s standard of living. Therefore, to make the divorce order practicable, the court may require Jide to still be paying some money to Titi as maintenance. Although the amount may be reduced if the court takes into consideration, Titi’s conduct (Adultery).
We move on to another ancillary relief:
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