One issue that needs to be dealt with in a divorce is the financial support, commonly known as maintenance, of the former spouse and the children.
Maintenance of the children
Both parents have a duty to contribute to the maintenance of the children, regardless of which parent the children are living with and which parent has custody.
Children who qualify for an order of maintenance
Under section 69(5) of the Women’s Charter, the court will only make an order for the maintenance of a child if he or she is under the age of 21. However, there are a few exceptions.
Firstly, if the child has a mental or physical disability, a parent may be ordered to pay maintenance even after the child turns 21. It must be noted a maintenance order would only be made if the child’s mental or physical disability is of such a nature that it affects the child’s ability to earn a living and support himself.
The second exception in which the court may order a parent to pay maintenance even after the child turns 21 is where the child is or will be serving full-time national service.
The third exception is where the child is or will be studying at an educational establishment or undergoing training for a trade, profession, or vocation. This includes where the child is pursuing tertiary education, such as at a university. However, the courts have noted that the child should not be prolonging his education and insisting on being maintained.
Hence, the courts will only order parents to maintain the child (1) if he is genuinely studying to prepare him better for the working world, (2) if it is reasonable for him to pursue that course; and (3) to the extent the parents can afford it.
Lastly, the court may order a parent to pay maintenance even after the child turns 21 where there are other special circumstances that would justify the making of such an order.
How much maintenance should be paid?
The maintenance of the child goes towards providing accommodation, clothing, food, and education. A parent will be expected to contribute a reasonable sum, having regard to his or her means and station in life.
Hence, the maintenance ordered is only to meet the reasonable needs of the child and if the child’s lifestyle is overly extravagant, the parent would not be made to bear that cost. One example of extravagant may be, for example, insisting on buying bird’s nests and snow jelly and including that in the child’s meal expenses.
However, the mere fact that both parents have the duty to contribute to the maintenance does not automatically mean that that they will have the same obligations.
The court will have regard to all the circumstances of the case including the income and earning capacities of the other parent and child in deciding what sum to order in maintenance.
Other factors that the court might consider are the financial needs of the child, the age of each party and the duration of the marriage, as well as the previous standard of living enjoyed by the child.
Hence, one thing parties should do is to take note of the various living expenses of the child, as well as provide evidence of the expenses so that the courts will have a concrete idea of the child’s financial needs.
Since the parents’ financial means and capabilities are significant factors in deciding the sum of maintenance to be paid, the court may also order a mother of stronger financial means to contribute more to the maintenance of the children than the father.
Maintenance for the former spouse
Under s 113 of the Women’s Charter, the courts may order for the husband to pay maintenance to his former wife, or for the wife to pay maintenance to her incapacitated former husband.
Incapacitated former husband
An incapacitated former husband refers to a former husband who was incapacitated, by any physical or mental disability or any illness, from earning a livelihood and was unable to maintain himself during the marriage, and still cannot maintain himself now.
However, a former husband will not be eligible for maintenance as long as he is capable of earning enough to secure the necessities of life.
Amount of maintenance to be paid
Some factors that the court may consider when determining the amount of maintenance to be paid include the income and earning capacity of each party, their financial needs, their ages and the duration of the marriage, and the standard of living they enjoyed before the divorce.
In this exercise, the courts aim to place the parties in the position they would have been if the marriage had not broken down.
An order for maintenance is meant to supplement the order for the division of matrimonial assets. Hence, where the former wife or incapacitated husband has been awarded a proportion of the matrimonial assets sufficient to support herself or himself, the maintenance ordered may be nominal, or there may be no maintenance ordered.