Spousal Maintenance (High Court and Summary Court Applications)

• Pages: 179-223

CHAPTER 9

SPOUSAL MAINTENANCE

(HIGH COURT AND SUMMARY COURT

APPLICATIONS)

PART ONE

INTRODUCTORY MATTERS

SPOUSAL MAINTENANCE: AN HISTORICAL OVERVIEW

1. THE SOURCES OF SPOUSAL MAINTENANCE LAWS IN

GENERAL

Spousal maintenance is the legal obligation to provide financial support to one spouse from the

other which arises during or after separation, dissolution of mar riage, during or upon termi-

nation of cohabitation with respect to the statutory spouse jurisdictions;1or consequent upon

nullity of marriage proceedings. It is awarded where a spouse is unable to support himself or

herself without payments from the other.

An examination of the current spousal maintenance laws of the various CC jurisdictions,

whether at the high court or summary court level, reveals that the basis of and factors appli-

cable to spousal maintenance applications remain based, in a some instances, on the English

common law, and in most instances, either on a current or repealed English legislative model.

Even with respect to those jurisdictions which have adopted a spousal maintenance model

based on Australia’s Family Law Act, 1975, in all the CC jurisdictions, at some stage, the

spousal maintenance laws were based on or identical to a maintenance act or maintenance

provisions, whether repealed or cur rent of England. Accordingly the history of the spousal

maintenance laws of England will be briefly examined.

The spousal maintenance laws of England are derived from two sources –the English

ecclesiastical courts which applied canon law principles and the common law rules of England.

In both instances, the duty of spousal maintenance, or alimony as it was, and still is called in

Guyana, Montserrat and Belize, was that of the husband only and this remains the case in

Montserrat and Belize, and in the case of Guyana, with respect to spousal maintenance appli-

cations made at the high court level. According to the ecclesiastical courts, marriage was an

indissoluble sacrament. As such, since neither separation nor the church-based divorce a mensa

et thora, as opposed to the absolute divorce a vinculo granted by an Act of Parliament, ended the

marriage, so far as the church was concer ned, the husband’s duty to maintain his wife

remained unchanged.

The husband’s common law duty to maintain his wife was described by Lord Merrivale in

Snowden v Snowden where he stated,

The right of a wife to maintenance as against her husband is not contractual in nature. It is an

incident under the common law of the status or estate of matrimony which is summed up in

Bacon’s abridgement 7th Edition Vol. 1 titled Baron and Feme p.173 A husband is obliged to

1 The statutory spouse jurisdictions with respect to spousal maintenance orders are Barbados, Belize, Jamaica

and Trinidad and Tobago.

maintain his wife and may, by law, be compelled to find her necessaries as meat, drink, clothes,

physic etc suitable to the husband’s degree, estate or circumstances.”2

Conteh C.J. in the Belizean case of King v Aguilar,3noted that the duty of the husband to main-

tain his wife, and not vice versa, was as result of the doctrine of unity of personalities.

According to this since abolished doctrine, the wife lacked the capacity to hold property in her

own right; to sue her husband; to contract even for necessaries; or to enter into a binding agree-

ment. This concept of unity of the married spouses which resulted in the inability of the wife

to own or hold property, gave rise to the agency of necessity, by which the wife at common law

could pledge the husband’s credit but for necessaries only4and gave the wife a right to an

allowance, but only to be supported by being given bed and board.5The husband’s duty to

provide the wife with the minimum of bed and board was also to ensure that the wife, who had

been stripped of all property by marriage, was not a burden to the taxpaying public.

On that point, Birkett J. explained in National Assistance Board v Parkes6that the19th century

acts, in particular the Poor Law Amendment Act 1868 England, were legislative efforts to

recover from husbands, sums of public money paid in respect of their indigent wives. However,

Birkett J. noted that it was not until the passage of the 1927 Poor Law Act that the husband

was included as a category of persons liable for the maintenance of his wife, but this was

provided he had sufficient means.

This common law duty of spousal maintenance was only enforceable against the husband

so long as the spouses cohabited for the husband was under no duty to maintain a wife who

lived apart from him, in other words the duty to maintain was coextensive with cohabitation.7

The husband was therefore relieved of his duty to maintain his wife and the wife could not

pledge her husband’s credit for a separated wife was considered not pledge-worthy if she was

guilty of desertion or had committed a matrimonial offence such as adultery or cruelty to the

husband.

2. PROTECTION OF WIFE’S PROPERTY, EARNINGS AND WAGES

– Guyana and The Bahamas

Many of the original 1857 MCA England provisions remain part of the matrimonial laws of

Guyana, and The Bahamas.8The 1857 MCA and its equivalent provisions in the case of

Guyana and The Bahamas respectively, provides, inter alia, that a wife deserted by her husband

may apply to the magistrate’s court or high court for a protective order preventing the husband

from claiming his wife’s property, wages, ear nings and savings by conferring on her femme sole

status.

180 Commonwealth Caribbean Family Law

2 (1928) P. 113 at 119.

3 BZ 2008 SC 34.

4 See Northop v Northop [1968] P.74 at 115, HL per Diplock L.J. See also Chapter 4 at 8. Doctrine of Unity

of Personalities: The Implications.

5 See Lilley v Lilley [1959] 3 WLR 306, [1960] P. 158.

6 [1955] 3 All ER 1 at 5. See also Lord v Lord BZ 2000 SC 52.

7 See Rodriguez v Rodriguez BZ 2000 SC 35.

8 Guyana, s – 4, MCA Cap.45:02; The Bahamas – ss.13, 14, 15, MCA CH. 125.

3. RESTITUTION OF CONJUGAL RIGHTS: AN INDIRECT

ROUTE TO MAINTENANCE – Belize, Guyana, Montserrat9

Restitution of conjugal rights decree provisions, which were first enacted by the 1857 MCA,

England provided, in those early days of matrimonial statutory intervention, an important

statutory means, albeit indirect, for a wife to obtain spousal support as the restitution of conju-

gal rights provisions provide in effect that on any decree for restitution of conjugal rights, on

the application of the wife, the court may make such order for alimony as it thinks just.10 The

MCA Cap 45:02 Guyana is illustrative. Section 29(1) provides in effect that non-compliance

with a decree of restitution of conjugal rights shall be deemed to be desertion and a decree of

judicial separation mat be pronounced although the statutory minimum period of two years’

separation may not have elapsed and the husband is liable as a result to maintain his wife,

although living apart from her. Section 26 (1) further provides that the court may order at the

time of making a restitution of conjugal rights decree, or at any time thereafter, in the event

of the decree not being obeyed, that the respondent shall make to the petitioner any periodi-

cal payments the court may deem just and the order may be enforced in the same manner as

an order for alimony in a suit for judicial separation.

It is to be noted that while restitution of conjugal rights provisions remain on the statute

books of Belize, Guyana and Montserrat, they are seldom if ever invoked, in recent times.

PART TWO

SPOUSAL MAINTENANCE UPON DISSOLUTION OF

MARRIAGE, NULLITY OF MARRIAGE, JUDICIAL SEPARATION

1. HIGH COURT APPLICATION

A spousal support application made ancillary to a decree of dissolution of marriage, or conse-

quent on a nullity of marriage decree or judicial separation order, as the case may be, is made

in all instances, to the high court or, in the case of Trinidad and Tobago, to the family court,

which is in effect a specialised division of the high court.

2. APPLICABLE TESTS AND GUIDING PRINCIPLES

The over-riding principle guiding the court in making an order for spousal maintenance is

based or premised on achieving a fair and just result. The respective matrimonial legislation of

the CC jurisdictions prescribes the appropriate test to be applied in achieving fairness. The

various jurisdictional tests or approaches have been examined in Chapter 8, PART ONE. In

brief, the tests or approaches to achieving a fair and just outcome in spousal maintenance

applications, by jurisdiction, are:

a. the means and ability test – Belize, Guyana and Montserrat;

Chapter 9: Spousal Maintenance 181

9 Belize – ss.142, 143, SCJA CAP.91; Guyana – s.29, MCA Cap.45:02; Montserrat – ss.14, MCA CAP.5.02

10 Ibid.