MCGREGOR
THE 1881 Maintenance Act gave the married woman pride of place relative to her unmarried counterpart. As a wife, she was entitled to look to her husband for the maintenance of herself and her children. An unmarried woman enjoyed no such luxury.
Section 3 of the 1881 Act specifically provided for an unmarried woman or a widow to maintain her children and grandchildren, if the grandchildren were not being maintained by either of their own parents. A married woman was only required to assume this role if her husband, who had the primary responsibility, failed to perform his obligation.
The 2005 Act will shift the balance by placing a single woman who has cohabited with a single man for at least five years as if they were in law husband and wife in the same position as a married woman. For the unmarried woman, the change is positive in that she will now have the right to apply for maintenance from her spouse. For the married woman, the change will mean that she will have an equal responsibility of maintaining her children as her husband does, because primary responsibility for the maintenance of children will rest on the shoulders of both parents.
For those who may view the alleviation of the burden on men as a recipe for cultivating more "dead beat dads," I would urge you to remember that the welfare of the child is the paramount consideration. With this as the rationale for imposing an obligation on both parents to maintain their children, the change should be more palatable. The legislative intent is to ensure that the person who is best able to make financial contribution to the child will be ordered to do so. Both parents, whether in a common law union, marriage or visiting relationship, are equally obligated to maintain their unmarried minor children and any adult children who are physically or mentally incapable of doing so.
There is a word of caution: Equal responsibility between parents is not tantamount to equal financial contribution, as each parent's assets and means will determine the proportion in which the maintenance order will be shared.
The children whom a woman may be ordered to maintain are her natural or adopted children, children whom she has treated as members of her family, including her spouse's children from another union. An order for maintenance of a child will usually last until the child attains the age of 18 years. However, under the 2005 Act, the order may be extended until the child reaches age 23 if payments are required for the purposes of education or training.
For your information:
The 1881 and 2005 Acts define maintenance in terms of the financial obligation. However, the ambit of the support which is contemplated in determining whether the financial contribution is adequate is not adequately addressed. The Child Care and Protection Act, 2004 may provide some guidance. Under section 27 of that Act, a person who has care of a child has a duty to provide that child with adequate food, lodging and health care appropriate to the age and needs of the child. Section 28 states that the care-giver is also obligated to take the necessary steps to ensure that a child between the ages of 4 and 16 is enrolled at, and attends, school.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to lawsofeve@yahoo.com.
