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A Bill to amend the Maintenance Act, to place equal maintenance obligations on both sexes as spouses and parents, is now before the Upper House.
Attorney General and Minister of Justice, Senator A.J. Nicholson, who piloted the Bill at Friday’s (Sept. 23) sitting of the Senate, said that the existing Act, despite being amended seven times, did not reflect the modern trends in the law relating to maintenance.
He said the amended legislation would “have significant impact upon social interactions in Jamaica. and affect the maintenance rights and liabilities of spouses both during the marriage or cohabitation and upon its breakdown”.
“These provisions touch and concern all maintenance matters during the existence of the union and upon a breakdown. and provide not only for the maintenance of spouses vis a vis each other, but also provides for the maintenance generally of children, parents and grandparents,” he pointed out.
The proposed changes, which are part of a package of family law reforms, are based largely on the recommendations of a Family Law Committee and serve to confer obligations on spouses to maintain each other.
According to Senator Nicholson, the legislative changes would also apply to cohabitants, as it was recognized that “legal solutions for the problems resulting from a breakdown of the family should not only address married couples but should also address common law couples to ensure effectiveness”.
“In fact, some people might say the law nowadays should be geared towards common law existence than the legal one because they are far more,” he pointed out.
Senator Nicholson said the decisions were also taken in respect of the new legislative provisions relating to property division enacted in the Property Rights of Spouses Act, which was passed last year. The Act provides for the division of property between spouses on the breakdown of a marriage or a qualifying common-law union.
On the provision of equal liability for maintenance, Senator Nicholson said that such liability would always be based on financial need and ability to make payments. In addition, each spouse will be made equally responsible for the maintenance of the children and maintenance rights and liabilities would be extended to cohabitants, who meet the qualifying criteria.
Furthermore, the Court is to be empowered to make a property division in lieu of, or in addition to a monetary order where it considers this to be appropriate.
In the meantime, the Attorney General said that several pieces of legislation would be impacted by the changes to the Bill, among them the Matrimonial Causes Act.
The amendments proposed would enable a married man to apply for maintenance upon dissolution of the marriage, which was previously the exclusive right of a married woman. “A married man can now apply for maintenance upon the dissolution of marriage and extending the duty of maintenance to parties, who previously were not so obligated is a departure from the traditional approach,” he explained.
He however noted that the jurisdiction to grant maintenance upon the dissolution of marriage has always been exclusive to that of the Supreme Court and would not be disturbed.
Furthermore, he said that there would also be implications for the Affiliation Act, which despite placing emphasis on the duty of a putative father to maintain his child, was outdated, and with the removal of the provisions regarding children born out of wedlock, the Act has also been deprived of its efficacy.
In addition, he noted that the Bill, which would repeal the Maintenance Act and the Affiliation Act, also necessitated consequential amendments to the Children Act.
Debate on the Act was suspended until this Friday’s (October 1) sitting of the Senate.