Courts Must Exercise Caution in Imposing Maintenance Orders

Member of Parliament for North East St. Andrew Delroy Chuck, while endorsing the Maintenance Bill, has said the courts must exercise caution in imposing maintenance orders under the new provisions. He noted that while there was no question that maintenance should be given where it was needed, it was felt that there were not enough safeguards in the legislation to prevent “feckless, worthless beneficiaries” from taking advantage of the legislation.
Mr. Chuck, who was contributing to the Debate on the Bill in the House yesterday (Nov.15), said there was the fear that persons might enter relationships for the better part of four years, and then deliberately break off the relationship and make claims for maintenance. Under the Act, “spouse” has been defined to include a single man and woman, who have lived and cohabited with each other for a period of not less than five years, whether married or unmarried.
“We must be careful about worthless and feckless individuals taking advantage of this Act and we hope that the courts in their application, would safeguard persons against these individuals,” Mr. Chuck stated.
“In deserving cases, the spouse should get some assistance but the court must be very careful in imposing the maintenance order because of individuals, who enter the relationship with ulterior motives,” he added.
Furthermore, Mr. Chuck said that where children have been abandoned and were not assisted by grandparents and parents, but managed to do well, any maintenance order imposed on the children should be for minimal assistance.
“The court ought to make some assessment as to how much (was) contributed to the upbringing of those children and to the family relationship over the five years, and if very little or no contribution was made, the court should be very reluctant to give any maintenance beyond the minimal. The court must look into all the circumstances”, he argued.
Mr. Chuck also noted that the Act was not meant to punish persons with wealth but was aimed at ensuring that parents, grandparents, spouses and children at least got some minimal assistance and did not become a burden on the state.
In the meantime, Health Minister John Junor said that while it was agreed that there was the potential for misuse of the legislation, the “malady that the Bill was intended to cure” was still the main factor. He said the provision was groundbreaking and completed the cycle of legislation aimed at strengthening the family structure in Jamaica.
Development Minister, Dr. Paul Robertson, in replying to the concerns raised, said the Bill had significant safeguards against abuse. He noted that Section 14 (2) of the legislation gave the court the duty to enquire and satisfy itself that the respondent was able to contribute to the maintenance of the dependants.
In addition, in determining the amount and duration of the contribution, the Bill makes provision for the court to consider all the circumstances of the parties including assets, capacity and the ability of the dependant to maintain themselves. “The Bill has been meticulous in the safeguards,” the Development Minister noted.
On the issue of insufficient sanctions, he noted that a prison term was a part of the sanctions, which could be brought to bear through the legislation.”If a court makes an order and it is not carried out, and it is shown that the order is willfully flouted, then incarceration is one of the options, which obtains,” he informed.
The Act also allows the courts to consider maintenance agreements entered into before or during cohabitation or marriage. Dr. Robertson said the court also exercised the right to set the agreement aside if it was unreasonable or if circumstances had changed.
The Bill places equal obligations on spouses to maintain each other, on parents to maintain their children and on persons to maintain their parents and grandparents. Such liability is however based on financial need and ability.
In addition to spouses being made equally liable for the maintenance of their children, maintenance rights and liabilities are to be extended to cohabitants, who meet the qualifying criteria.
Additionally, the court is to be empowered when making maintenance provisions for a spouse or child upon the breakdown of a marriage or upon the termination of cohabitation, to make a property division in lieu of, or in addition to a monetary order, where it considers this to be appropriate.
The provisions concern all maintenance matters during the existence of the union and upon its breakdown. The proposed changes form part of a package of family law reform based largely on the recommendations of a family law committee. The Bill was passed without amendment.