Sherry-Ann McGregor, Contributor
MCGREGOR
WHEN PEOPLE become involved in romantic relationships, if either party had a child in a previous union, it is usually expected that a relationship will develop between the child and the new partner. Does such a relationship impose new financial obligations on the new partner? Does that obligation cease if the relationship came to an end?
DEFINITION OF PARENT
We already know that The Maintenance Act 2005, which came into effect on April 1, places an equal obligation on every parent to maintain his or her unmarried child if that child is a minor or is physically or mentally infirmed. It is not only the natural parents of the child who have that obligation. A party to a marriage or cohabitation will be a 'parent' of a child who:
i. is a child of that marriage or cohabitation; or
ii. is a child of the other party to the marriage or cohabitation who has been accepted as a child of the family.
Based on these provisions of the act, a stepparent is obligated to maintain a stepchild, whether the relationship arose within the context of a marriage (including a void marriage) or in a common law union.
Once this obligation arises, it will continue until the child attains the age of 18 years, and may extend until he or she reaches the age of 23, if that child is engaged in a course of education.
A stepchild may apply to the court for an order that a step-parent provide maintenance even after the termination of cohabitation or marriage as a result of separation or divorce. It is not difficult to envisage the issues becoming a little complicated if, based on the definition of parent, a child has more than two parents. For example, a child may have two natural parents and two stepparents, because both natural parents have remarried or are cohabiting with other persons.
FACTORS TO CONSIDER
When considering such an application, the court ought to examine the extent to which the stepparent had assumed financial responsibility for the stepchild after that child became a child of the family as well as the extent to which there are other persons who are liable to provide for that child. The most important factors for consideration will be the welfare and needs of the child and the means of the parents. This will determine the amount of support and the extent of each parent's obligation.
PERIODIC PAYMENTS
If the maintenance order is made against a stepparent, he may be required to make periodic payments, a lump sum payment or other appropriate provision for the maintenance of a stepchild. If there is default in making such payments, the stepparent's income or pension may be attached and he may ultimately be committed to prison if there is evidence of "wilful refusal or culpable neglect" to comply with the court's order.
It is interesting to note that the obligation to maintain a stepchild may become the liability of the stepparent's estate. If the step-parent failed to make adequate provision for the stepchild under a will, the court may order that reasonable financial provision for maintenance of the stepchild should be made from the step-parent's estate.
Sherry-Ann McGregor is partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
