MCGREGOR
DURING THE many weeks of debate prior to the passage of the Maintenance Act 2005 in the Upper House on November 9, 2005, we heard mention of the Property (Rights of Spouses) Act. There were frequent assertions that the two Acts would complement each other. However, there was little explanation of the connection between the two, so let us explore the common thread between the Maintenance Act and the Property (Rights of Spouses) Act.
DEPARTURE FROM TRADITION
Some of the provisions of the two Acts represent a departure from traditionally held views and norms regarding the relationships between men and women, and their rights and obligations. The old system was patriarchal in origin, and ascribed to men the bulk of the responsibilities for maintenance. These new laws attempt to level the playing field between both sexes by establishing a consistent framework for the treatment of couples who are legally married, or cohabiting in common law unions, in terms of the division of property and maintenance.
The old legislations made no provision for unmarried women to apply for maintenance or for a share in property acquired by their spouses during the currency of the union. In other words, common law spouses were never mentioned in the Maintenance, Matrimonial Causes or the Married Women's Property Acts.
When the two new Acts become operational, a spouse (that is, a single man or a single woman who has cohabited with a single woman or a single man as if they were in law husband and wife for a period of not less than five years) will be entitled to apply for maintenance.
How are the statutes connected?
Only two sections of the Maintenance Act contain references to the Property (Rights of Spouses) Act. Section 5 (2) (h) states that a maintenance order may be made in proceedings for division of property pursuant to the Property (Rights of Spouses) Act and section 3 (2) provides that any order made under the latter Act may be a factor used to determine the amount and duration of a maintenance order.
There are other practical reasons why the two Acts are connected. The most obvious one is that most couples will need to grapple with both issues of maintenance and division of property once they decide to separate. The similarities between the two Acts will make it far easier for the issues to be aligned and determined. Some of these similarities are:
1. Spouse is uniformly defined in both Acts.
2. There is equal obligation on the part of spouses to maintain each other and to share property.
3. A man is entitled to apply for maintenance from his spouse or for a share in her property.
4. Spouses or couples contemplating marriage are entitled to enter into maintenance or settlement agreements in respect of maintenance or the division of property whether before or during the term of their cohabitation, or after separation.
5. Applications under either Act must be made within 12 months of separation.
After the Minister announces the date on which the Acts will take effect we will have the chance to see whether they truly complement each other.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback to lawsofeve@yahoo.com.
