In Nigeria, where social and moral obligations are obtainable and highly relevant to a marriage union, the turbulence of a breakdown, i.e divorce, is highly felt by not just the spouses and the children of a marriage, but also families and friends of the parties involved who became drawn by virtue of the marriage union of the parties in question. For there to be a mention of maintenance, it connotes that marriage is likely to break down or is on the verge of breaking down. Whether it breaks down irretrievably or not, the issue of maintenance is so important, so as to secure some financial security in the future, especially for the children of the marriage. The maintenance payment is usually paid to the spouse in the custody of the child(ren).
What is Maintenance?
According to an online definition, “it is a periodic monetary sum paid by one spouse for the benefit of the other upon separation or dissolution of a marriage…” Oxford defines it as “money that a person shall pay regularly to the former partner especially where there are children involved” (paraphrased). All these definitions can suffice for the meaning of maintenance if considered under matrimonial causes circumstance. It is, therefore, an ancillary relief which when sought by a divorce lawyer on behalf of a client and successfully obtained, is due to a party and the children of an ended marriage.
Section 70 of the Matrimonial Causes (MCA) provides for the two types of maintenance, being maintenance per sesee Sec. 70(1)MCA and maintenance pending the disposal of proceedings Sec. 70(2)MCA. The beneficiaries of the maintenance are a spouse to marriage and the children of a marriage. The court will have regard to maintenance with its basis on four factors which are: the means of parties, the earning capacity of the parties, the conduct of the parties and all other relevant circumstance. We shall consider the above accordingly.
The Means of the Parties
This is the assets of the parties, whether liquid cash, shares in the company or in equity, investments. It also includes contingent and prospective assets of each party. This is a yardstick to determine the right or obligation to maintenance.
Earning Capacity of the Parties
This refers to what the parties earn and the potential that they can earn in the event they are in employment. It is pertinent to note that a wife is not obligated to work in order to reduce the maintenance her husband is expected to pay. Also, where the children are young and required to be catered for,there should be no expectation of and on her earning capacity to count as maintenance for the children. Normally, a party seeking for maintenance order may apply to the court to obtain same. This issued certificate gives cognizance to the resources of the parties and/or their capacities to earn income. Such certificate constitutes evidence of the maintenance as contained therein.
Conduct of the Parties
The Court equally considers how parties conduct themselves. However, it is observed that the extent to which the conduct of the parties should count is not sufficiently worded enough by the MCA but this position is left to the discretion of the court for determination accordingly as what constitutes conduct would mean different things in context. In Harnett’s case, it was held that Conduct is gross and obvious when in the interest of justice, it ought not to be disregarded in making a maintenance order. The court shall always place a priority on the interests of the children and equally make adequate provisions where necessary.
All other relevant circumstance.
The nature of this factor is very relative as no two given instances will be identically the same. Here, this omnibus provision gives room to accommodate what should be relevant while still being subject to the discretion of the court. This paramount position would count as to the definition of relevant circumstance. In a decided case, the Court determined that extended family obligations may constitute one of the other relevant circumstances. This is because in the Nigerian parlance, parents are owed, directly or impliedly, some moral obligation to be catered to. The number of years that parties have stayed together as seen in Oluibukun V. Oluibukun(1974)All NLR 463 at 469 and financial standing as well as the standard of living can also constitute all other relevant circumstances.
What is the effect of an Order of Maintenance?
While each case is to be treated on the grounds of its merit, once an order is sought and obtained, it can be enforced against the party who is in breach of that obligation. With that being said, child maintenance can come in form of a lump sum or in instalments, according to how the parties decide or how the Court determines. It should be noted that under the Islamic and customary laws in Nigeria, no provisions are made regarding maintenance thus, putting a disadvantaged party in a dicey position.
In conclusion, maintenance does not seek to share in the fortune of a party but places them in a position where they should have been if the marriage had not broken down as provided for by Sec 5 of the Matrimonial Proceedings and Property Act 1970.