LAWS OF EVE - Maintenance during challenging economic times

Published: Monday | February 2, 2009

Sherry-Ann McGregor - Contributed

As economic conditions continue to deteriorate and job security becomes more tenuous, we should expect to witness an increase in the frequency of maintenance applications both in respect of spouses and children.

The party who is called upon to answer applications for maintenance will invariably ask, "Can a court really order me to make a greater contribution than I can reasonably afford?" or "How can I be asked to make maintenance payments while I am unemployed?'

When we consider maintenance, the two most relevant considerations are the need of the party who is making the application and the ability of the party against whom the application is made to pay. Therefore, both spousal and child maintenance will require evidence of the needs of the applicant or that of the person on whose behalf the application is being made as well as the means of the respondent.

Distinction points

There are some clear points of distinction between child and spousal maintenance which should be noted. In the case of children, the law imposes an equal obligation upon the parents of a child (whether they are married or not) to maintain that child until he or she is at least 18 years of age. In some cases, this obligation could continue until the child is 23 years old.

The court starts the process with the assessment of the needs of that child, with regard to his or her age, status and any special needs. The next step is to determine the financial contribution that each parent must make in order to take care of that child's needs; and this demands an examination of the needs and means of each parent.

While parents will be ordered to share equitably in the maintenance of the child, the amount of the contribution may not be equal. This is because each parent's income, earning capacity and financial resources will be reviewed. During that exercise, it may become clear that the burden may rest more heavily on the shoulders of one parent than on the other.

In the case of spousal maintenance, the enquiry is slightly different because the spouse who is making the application must demonstrate that there are needs which he or she is unable to reasonably meet before turning to consider whether the other spouse has the means to make a financial contribution.

Applications intersect

Where both types of applications intersect is at the point where the means of the respondent must be assessed. For this reason, the respondent's income, earning capacity, property, financial resources and capacity to earn and derive an income will be relevant. The fact that the respondent is unemployed will be considered, but it may not mean that no order for maintenance will be made.

This is because, provided the amount which is being sought for maintenance is reasonable, the court may still make an order for maintenance against an unemployed respondent, based on an assessment of that person's capacity to find employment and earn an income.

This income may even be considered in respect of property or assets which may be capable of producing income.

Pay order

For this reason, an order may also be made for a respondent to pay an amount which is greater than a sum which he or she can currently afford on the basis that the respondent is capable of manipulating his or her income or is ignoring reasonable employment prospects.

Orders of this nature are more likely to be made in respect of children because the court guards their welfare jealously.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to or