Divorce and... maintenance
Divorce has now been legalised and, come October, proceedings can be filed. However, many may have got much more than they bargained for with the so-called “divorce legislation” because the new law imposes more onerous maintenance obligations between spouses and/or towards children.
The following are the main changes introduced to the maintenance obligations:
Obligations towards children
The legislator has extended the obligation to maintain children born in marriage. This obligation no longer ceases once a child is 18 but extends throughout the lifetime of a child suffering from a mental or physical disability and up to the age of 23 when the child is in full-time education. However, this extension depends on the means of the parent and is applicable only in cases where the children are not able to maintain themselves adequately.
The obligation to maintain one’s children has also been extended to include the children of one’s spouse born from a previous relationship or marriage when the other parent (not the spouse) is dead, absent or unknown.
Curiously, this extension of maintenance obligations applies only to children born within marriage or to a person acting as a parent in regard to his/her spouse’s children.
Obligations in the case of personal separation
The criteria to be applied in liquidating maintenance in favour of the spouses and their children are the means and abilities of the spouses and the relevant circumstances of the spouses and the children. A non-exhaustive list of what would constitute a relevant circumstance includes disability and serious illness, social assistance and the accommodation requirements of the spouses and children. A spouse who would have dropped out of the job market (even temporarily) owing to family responsibilities may also claim that his/her diminished earning capacity constitutes a relevant circumstance in the liquidation of maintenance due to him/her.
In its judgement, the court may also order that maintenance is deducted directly from one’s salary and that maintenance payments are to be increased from time to time. Although there is no criteria to be applied in providing for such increases, a higher cost of living is a fair benchmark, having already been applied for many years in deeds of separation in order to calculate increases in maintenance payments.
Maintenance and divorce
The issue of guaranteed maintenance was central to the referendum question and was foremost in the legislator’s mind in legislating on divorce. Thus, although a spouse receiving maintenance from the other is entitled to renounce to that right, the spouse who fails to provide adequate maintenance to his/her spouse or children may find that the request for divorce is refused or if a divorce is granted a guarantee would have been imposed by the courts.
The guarantee imposed must be “adequate and reasonable” and may not exceed the amount of maintenance due for a period of five years. Furthermore, this guarantee may only be imposed if that spouse would have already reneged on the obligation to pay maintenance or if serious objective circumstances exist making such a guarantee necessary.
It is not clear what form this guarantee will take and what would be the utility of such a guarantee if the person obliged to pay maintenance is destitute or is already bound to make payments to a former spouse or children.
In the case of legally separated spouses, the maintenance agreed in the deed of separation or imposed by the court in a judgement of separation is deemed adequate, whatever the amount, and it cannot be varied in the judgement pronouncing divorce. Therefore, a spouse seeking to vary his/her maintenance obligations would have to institute a separate lawsuit citing a change of circumstances as grounds for an adjustment.
The situation of those spouses seeking divorce but who are not yet legally separated is different because the presiding judge would have to liquidate adequate maintenance for the spouse (if this is due) and for the children. Even in this case, a guarantee may be imposed if the court is of the opinion that there is a real possibility that the maintenance obligations will not be honoured by one or both spouses.
Strangely, the term “adequate maintenance” in relation to both children and the former spouse must be interpreted according to section 57 of the Civil Code but this provision only refers to the general obligation placed on parents to maintain their children. This could have been an oversight on the part of the legislator and it remains to be seen how the courts will interpret this provision or if an amendment is in order.
Maintenance after divorce
The new law categorically states that the pronouncement of divorce will not affect the rights and obligations of the parties as parents.
A divorced person who receives maintenance from his/her former spouse will lose such a right if s/he (not the paying spouse) remarries or if s/he enters into a personal relationship that creates an obligation on a third party to pay him/her maintenance.
An exception is made if the spouses would have agreed in the deed of separation that the maintenance obligations would continue to remain in force even in such eventualities. Besides, if maintenance would have been paid by means of a lump sum, the former spouse who remarries or who enters a personal relationship would not be obliged to refund any part of that sum.
To date, there is no obligation of maintenance between cohabiting couples and, therefore, it is assumed that the reference to a personal relationship was introduced in anticipation of the Cohabitation Act, which would presumably create such new obligations. Neither does the new law define what is meant by a “personal relationship” and whether it includes gay relationships or relationships between siblings. This still remains to be seen and discussed once the cohabitation Bill is published.
This article merely attempts to give a brief overview of the changes to the provisions relating to maintenance.
A particularly vulnerable group whose financial position may change drastically are those spouses, typically women, who are of pensionable age and who would have never worked outside the home. If their husband remarries and predeceases them, they would not be entitled to a widow’s pension on the strength of his contributions towards national insurance. This issue definitely needs to be tackled in order to ensure that divorce does not give rise to a new kind of poverty and does not overburden our system of social services.
Dr Sciberras Camilleri is partner at Francis Zammit Dimech Advocates.