Maintenance during marriage and beyond
A married couple, living happily together, does not usually worry about the issue of maintenance. The issue of maintenance, be it to the spouse or to the children, crops up when marriage heads downwards. What is maintenance? What does it cover?
In fact, maintenance does exist during marriage and the obligation to support a spouse can survive the termination of the marriage. Article 3B of the Civil Code states that marriage imposes on the spouses the obligation to take care, maintain, teach and educate their children born through marriage according to their capacity, natural inclinations and aspirations of the children.
Article 5(3) of the Civil Code lays down that, regarding maintenance, the spouses cannot claim maintenance from their children or from their descendents or ascendants as long as they are able to claim maintenance from each other. In fact, the claim for maintenance is only terminated if, after one of the spouses leaves the matrimonial home without any valid reason, such spouse would not want to return to the matrimonial home.
Article 19 of the Civil Code defines maintenance as including food, clothing, health and living quarters. It adds that, for maintenance to be given to children, it should not only be limited to food, clothing, health and living quarters but should also include the expenses necessary for the education and health of the children.
Why is maintenance given? Is it an obligation?
It is certainly a duty as delineated in the Civil Code and also an obligation. In Portelli pro et noe vs Portelli (June 25, 2003), the Civil Court, First Hall stated that the obligation of maintenance towards the children comes before the obligation for spousal maintenance. The obligation to give maintenance to the child is not tied down to the parent’s employment or the parent’s income but is an absolute obligation.
In Tabone pro et noe vs Tabone (October 3, 2003), the Civil Court, First Hall ruled that unemployment is not a reason to disengage the husband from the obligation of paying maintenance to his wife, especially when such unemployment was due to his fault. The court added that the law does not force any of the spouses to work but the civil law imposes the obligation that spouses should reciprocally maintain each other and their children. However, even if one of the spouses is receiving the minimum of social assistance and, thus, does not have sufficient means to maintain him/herself or anyone else, still, according to the law, the court states that s/he should give a percentage of what s/he gets.
The fact that the wife does not work does not mean she does not have the potential to work and she should be able to take care of her responsibilities with regard to maintenance towards the family, stated the Civil Court, First Hall in Portelli pro et noe vs Portelli. However, the court added that, due to certain circumstances, the parent who has the care and custody of the child will be unable to work due to the fact that such parent must take care of the child. This is a sufficient reason for the other spouse to pay maintenance to the spouse having care and custody of the child for a certain time.
What happens if the person owing maintenance to the other spouse and to the children fails to give the maintenance due? Is maintenance due only to married persons and children?
If maintenance, which has been ordered by the court or is written in a contract, is not paid, it becomes a criminal contravention against public order as per article 338(z) of the Criminal Code and is liable, if convicted, to detention, fine or reprimand or admonition.
However, if such convicted person is a recidivist, that is, s/he has been convicted of not paying maintenance to the other person or children more than once, such person will become liable to detention for not more than three months, or a fine of not more than €200, or imprisonment for not more than two months. It is to be noted that an amendment was recently passed in the law, namely Act XI of 2009. Prior to this, only spouses had a claim for maintenance against each other. However, due to this new law, the words “his or her spouse” have been substituted with the words “a person” to cater for those people who are unmarried.
An anomaly might be perceived in the sense that articles 5 and 6 of the Civil Code, two articles dealing with maintenance, use the term “spouse” whereas article 338(z) of the Criminal Code, which deals with the criminal contravention of not paying the maintenance due, has eliminated the term “spouse” and is using the term “person”.
The author is a lawyer and a published author with a special interest in family law and child law.