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Maintainance in Divorce, An Analysis of Nigerian Case Law

By : Cythia T Ahaneku

INTRODUCTION

Maintenance in matrimonial causes has created and established entitlements for spouses and children in separation and divorce matters in Nigeria. Either party to a statutory marriage may apply to the court for an order of maintenance, where the parties are unable to reach an agreement on the issue.

Maintenance is portrayed as a benefit of statutory marriage. This is because it is only parties to a statutory marriage that are entitled to Maintenance. Maintenance can be defined as the amount of money granted by a court to a spouse of a statutory marriage for their upkeep, basic needs, and necessity.

The Black’s Law Dictionary defines maintenance in the current context as ‘Financial support given by one person to another, paid as a result of separation or divorce

According to P. Ramanatha Aiyar’s Law Dictionary, maintenance means “the support which one person who is bound by law to do so gives to another for his/her living”.

The Law has evolved over the years from Common Law Principles established by English Jurists to The Matrimonial Causes Act which provides for maintenance of parties and children of a marriage. The Matrimonial Causes Act also gives the court the discretionary power to grant maintenance to a spouse or children.

This article examines the provisions of the Matrimonial Causes Act on Maintenance and the principles that have evolved under common law; it argues that despite what appears to be the obvious placing of the husband and wife on the same footing in terms of the right to ask for Maintenance it appears that the spirit of the common Law continues to influence proceedings today.

THE POSITION OF MAINTENANCE UNDER COMMON LAW

Under the Common law, the approach has been one centered on the responsibility of the man and the view has been established that a husband has a responsibility to maintain his wife and children and other dependents. Thus, in Common law where a husband deserts his wife, the court would usually rule that the man is obligated to provide maintenance to the woman and her children. This was the stance the court took in the case of Price v. Price where the wife who was the Appellant brought an action against the husband for willful neglect of her and her infant child. The court upheld the claim of the wife and ordered the husband to pay £1 every month for the maintenance of the child and wife. The court also declared her as an agent of necessity to pledge her husband’s credit for necessities.

In the more recent supreme court case of Tabansi v. Tabansi the court took a similar view. The Court of Appeal in affirming the judgment of the court of first instance stated that “At common Law, it is the sole responsibility of the man to take care of his family’’. On further appeal to the Supreme Court, in reiterating this stance, Onoghen JSC affirmed that the respondent and her daughter were dependents of the appellant before ordering the payment of maintenance to the respondent. It is also pertinent to note that the husband in this case was deemed as quite wealthy by the court, so it is understandable that the court took this view.

STATUTORY PROVISION OF MAINTENANCE

Section 70 of the Matrimonial Causes Act made detailed provision on Maintenance generally. Section 70 provides as follows:

Subject to this section, the court may, in proceedings with respect to the maintenance of a party to a marriage, or of the children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks fit, considering the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

Subject to this section and to rules of court, the court may in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage pending the disposal of proceedings, makes such order or orders as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

The court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which maintenance are related.

The power of the court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of the opinion that there are special circumstances that justify the making of such an order for the benefit of that child.

PARTIES ENTITLED TO MAINTENANCE UNDER THE MATRIMONIAL CAUSES ACT

By the provisions of section 70(1)(2) of the Matrimonial Causes Act of Nigeria two groups can be said to be entitled to maintenance namely:

1. Any party to the marriage, that is either the wife or the husband, and

2. The children of the marriage

From the provision of section 70(1) (2) any party to the marriage is entitled to maintenance. Therefore, it is not the prerogative of the wife alone to ask for maintenance as a party to the marriage may either be the husband or the wife. The common law rule which gives the right to maintenance to the wife alone is abolished and is no more the law in Nigeria.

A court can make an order for maintenance of a party to the marriage or of children of the marriage, suggesting that a maintenance order could potentially be made in favor of the male spouse and a mother could be ordered to pay maintenance for children. It could be considered quite progressive that Nigerian matrimonial law has removed a common law distinction that reinforced a woman’s lower status.

In Nakanda v. Nakanda the court of Appeal rejected the decision of the lower court and held that under the Matrimonial Causes Act the position of the Husband and the wife were assimilated and either party is entitled to consideration and that the old idea that the husband must maintain the wife is repugnant to the idea behind the Matrimonial Causes Act which has now put the man and his wife on the same footing.

Notwithstanding this clear position of the Law in Nigeria as stated in Section 70(1) (2) of the Matrimonial Causes Act (MCA), Nigerian judges, even at the appeal level have continued to allow themselves to be ruled by the spirit of the common law rule which is a wrong interpretation of the clear provisions of the MCA as the common law rule is dead and buried and it will be against morality to exhume its body from the grave. The courts in Nigeria should allow the spirit of the common law rule to rest in peace wherever it may sojourn.

However, there is no recorded Nigerian case where husband had asked for maintenance from the wife and that does not derogate the existence of the Law.

The failure of husband to take advantage of this law can be blamed partly on the influence of the society and customs as it is considered ridiculous for a man to go to court, asking the wife to give him money to take care of himself.

Thus, according to the learned author E.I Nwogugu in his book titled Family Law in Nigeria, the social pattern in Nigeria is undergoing rapid changes in equality and it is believed that with these changes and enlightenment, the men and husband will take the advantage of the provisions of Section 70(1) (2) and ask for maintenance from their wife.

Maintenance of children of the marriage
Who is a child of the marriage?

The power to order maintenance for the children of the marriage cannot be exercised for the benefit of the child who has attained the age of twenty one years, unless the court is of the opinion that there are special circumstances which justify the making of such order. Under section 277 Child’s right Act, 2003. A child is a person under the age of 18 years and by virtue of Section 55(15) of the same Act, orders relating to maintenance of a child shall cease to have effect when the child attains the age of 18 except otherwise directed.

Section 70(7) MCA provides that the court has the general power to make maintenance order with respect to the children of the marriage. However, such power cannot be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of the opinion that there exists a special circumstance which justifies it.

In the case of Cunningham v. Cunningham, the parties were married in April, 1963. The wife had two children by her previous marriage and these children were accepted initially as members of the household by the respondent. From September, 1963 the spouses became estranged and although occupying separate sleeping rooms, they continue to occupy the same dwelling, took their meals together and shared social occasions together until they finally separated in November 1965. More than a year before their separation, the responsibility of the upkeep and upbringing of the wife or children (by her previous marriage) respectively had been substantially relinquished by the respondent to the wife’s parents. On the facts, it was held that, although the parties ceased to live together only from November, 1965, the children were no more members of the household, since the respondent had relinquished responsibilities for them more than a year earlier. Whether a child was a member of the household of the spouse is a question of fact and not one of law. If a child is regarded and treated by both spouses as member of the household, that will be adequate proof of the membership of the household.

FACTORS TO BE CONSIDERED IN MAINTENANCE

While the court has discretion in granting maintenance orders there are nevertheless some clear factors to be considered for the assessment of maintenance.

By virtue of the provisions of Section 70(1) (2) Matrimonial Causes Act and in the opinion of Justice Aderemi JCA in the case of Mueller v. Mueller there are four relevant factors to be taken into consideration in a maintenance proceedings: namely

1. The means of the parties
2. The earning capacity of the parties

- The conduct of the parties

1. All other relevant circumstances.

It is important to note that the MCA did not define these factors; however, the courts with their decisions have given us a clearer view of what these factors mean.

Means

The means of the parties include capital assets like buildings and equity and share in a company together, with contingent and prospective assets. It also covers all pecuniary resources of the parties whether capital or income or whether actual or contingent. The means of a party is relevant in determining his right or obligation to maintenance.

In the case of Negbenebor v Negbenebor the Supreme Court considered the meaning of the terms, “income, earning capacity and assets”. In the said case, the lower court had added the value of the husband’s assets, and money he had in the bank to the regular earning of the husband to constitute his income. He then added the wife’s earning to his total sum, divided it by three and held that the wife was entitled to one third of the total sum as her maintenance. It was held by the supreme court that the arrears of maintenance payable may be made retrospective from the date when the originating summons (or petition as the case made be) in the case was issued.

However, in the case of Olu-Ibukun v Olu-Ibukun the Supreme Court held that a man’s house and money in his bank account are not income and should not be considered in awarding maintenance.

It is submitted that this narrow view of “means”can work injustice to a deserving spouse. Although assets such as houses, cars etc. are not income, for instance, the rent of the properties, interest generated from a fixed deposit account, dividends from shares, money from transport business etc. this ought to be taken into consideration in determining the “means’ of the spouses.

Earning Capacity of the Parties

This refers not only to what he or she in fact earns but the potential earning capacity if that spouse obtains suitable employment. The meaning of earning capacity was considered by the Supreme court in Negbenebor v Negbenebor wherein the lower court from whose judgement the husband appealed in this case, had added the value of the house, owned by the husband and money he had in the bank to the regular earning of the husband to constitute his income. He then added the wife’s earning to its total sum divided it by three and held that the wife was entitled to one- third of the total sum as her maintenance. The Supreme court held that the judge was in error. The latter had confused the basics of assessments which should have been the respondent’s income as distinct from his assets.

Thus, where a spouse is employed, the court will consider whether his income is commensurate with his actual earning capacity. In Mc Ewan v Mc Ewan the husband, a retired constable aged 59 was unemployed although his only cash income was a police pension of 6 pound weekly, the court held that, an order that he should pay his wife the whole of the sum was unreasonable. It was proper, the court stated to take into account his potential earning capacity as he could have obtained a suitable work had he tried.

Conduct of the Parties

The conduct of the parties to the marriage is one of the factors to be considered in determining whether to award maintenance or not. However, our courts have not determined whether our new law which is based on breakdown of marriage rather than matrimonial offence has effected any change in the interpretation of the conduct of the parties to the marriage.

In England, courts have interpreted section 5(i) of the Matrimonial Proceedings and Property Act 1970 which requires the court in dealing with applications for maintenance to have regard to the conduct of the parties. In Watchel v. Watchel Lord Denning, M.R., stated that it is no longer appropriate to talk about an innocent or guilty spouse. The learned Judge also rejected the suggestion that there should be a discount or reduction to what the wife should receive because of her supposed misconduct. This decision was affirmed in Harnett v Harnett

Some of the grievous conducts which English courts have taken into account in dealing with applications for maintenance include the wife who fired a shot gun at her husband after she was shut out of the house; the husband who inflicted serious and lasting injury on his wife, and the husband who committed adultery in his matrimonial home with his daughter in-law. On the whole, there is good justification in adopting Lord Denning’s interpretation as applicable to our law. Thus, it seems safe to conclude that conduct will only be relevant in determining financial provision if ‘gross and obvious’ or if ‘common justice’ requires that a party should get less than what normally should be due to that party.

Other relevant circumstances

Section 70 (1) of the Matrimonial Causes Act, 1970 gives the court wide latitude in dealing with applications for maintenance. Matters such as the standard of living of parties, and the financial requirements of the applicant spouse would be included in the phrase[16]. Other factors which may come within the meaning of the provision may be viewed from the particulars which are required to be included in an application for maintenance. These are:

- The property, income and financial commitments of the claimant;
- The capability of the claimant to earn income;
- The capability of the spouse of the claimant;
- Any financial arrangement in operation between the claimant and the spouse of the claimant;
- Any order of the court under which one of the parties to the marriage is liable to make payments to the other; and
- The ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home

In Nanna v. Nanna the court advised that in determining maintenance the court will regard what is fair and equitable based on evidence adduced at trial, also the standard of life which the parties previously maintained before they parted and the current economic trend.

In Hayes v. Hayes the Court considered that the applicant was a qualified lawyer who was asked by the respondent to stop practice and become a full time house wife and the fact that the respondent was giving the applicant the sum of N20, 000.00 for the partial running of the house, upkeep and basic needs. In the court’s opinion, by the agreement of the respondent he had made the applicant believe that wealth would continue to flow and she would live in affluence without practicing her profession as a lawyer, therefore the respondent will continue in that manner to maintain her.

CAN THERE BE AN INDEPENDENT ACTION FOR MAINTENANCE?

The question has always been asked if maintenance proceedings can be brought independently of any matrimonial causes. Two schools of thought exist in terms of the answers to this thought-provoking question;

One of the schools of thought is that maintenance proceedings cannot be brought independently of a proceeding for Matrimonial Causes as stated in Section 114 (1)(a) of the MCA:

1.Proceedings for a decree of:
2.Dissolution of marriage;
3.Nullity of marriage;

-Judicial separation;

1. Restitution of conjugal rights; or
2. Jactitation of marriage.

The school of thought further supported its contention by Section 70(3) which according to the school of thought suggests that the order of maintenance must be related to the principal reliefs.

The second school of thought is espoused in the case of Nakanda v. Nakanda the Court of Appeal held that a spouse can bring an independent action without joining it with any principal relief like divorce, nullity of marriage etc. in other words any party to a marriage that is about to collapse if he so wishes, can ask for the maintenance under section 70(1).

A careful consideration of the two schools of though reveals that an order of maintenance may or may not be an outflow of a suit for principal reliefs such as dissolution of marriage or judicial separation. However, in practice, what obtains is that an order for maintenance is sought as an ancillary relief to the principal reliefs mentioned above.

CONCLUSION

In conclusion, the maintenance of a spouse in a divorce proceedings or petition may depend on the reliefs sought at the court. The Matrimonial Causes Act affords parties to a marriage the latitude to bring an action for maintenance and not the common law rule way.

Both the parties and the children to the parties are entitled to maintenance. The court has the responsibility and discretionary power to grant maintenance after considering the factors to determine it which are; means, earning capacity, conduct of parties and any other relevant circumstances.

Finally, an order payment of maintenance fees or award to the spouse is granted in order to take care of the spouse and children of the marriage. The Matrimonial Causes Act could be likened to the bible that guides parties through the whole proceedings and should therefore be followed duly.

[1] Cap M7 LFN 2004
[2] 1927, 43 TLR 69
[3] 2009 12 NWLR [Pt. 1155] pg.427 at 430
[4] Suit No; CA/1/99/81
[5] (1968) 11 FLR 399
[6] (2006) 6 NWLR (pt. 977) 627 at 645 -646
[7] (1971) 1 ALL NLR 210.
[8] (1982) FCA/E5/82
[9] Supra
[10] (1972) WLR 1217
[11] (1973) FAM 72
[12] (1974) 1 WLR 219.
[13] Armstrong v Armstrong (1874) 1185j 579
[14] Jones v Jones (1976) Fam 8
[15] Dixon v Dixon (1974) Fam Law 58
[16] Tomkins v Tomkins (1948)
[17] Rule XIV, Order 4, Matrimonial Causes Rules.
[18] (2002) 3 NWLR (Pt. 966) 1 at 41
[19] (2000) 3 NWLR (Pt. 643) 276
[20] supra

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Opemipo O Yusuf

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