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Compensatory take on maintenance

A common scenario in marital breakdown is where the husband is the family breadwinner and the wife is a stay-at-home mother.

The wife might have adopted the traditional domestic role for various reasons, with one consequence being that she had to give up her career to take care of the household, mainly children.

She might have had to change jobs several times due to her husband’s work and to take care of the household, thus never able to work her way up the career ladder.

Then, when the spouses file for separation, the wife, who would have been out of the world of work for so many years, is faced with a cold and harsh reality.

Who is going to employ somebody who has not worked in 20 years? Can the husband make good for the time she spent out of work to provide for the household? Is there some sort of compensation for the stay-at-home wife for all those years taking care of the household?

Maintenance is divided into two categories: spousal maintenance and child maintenance. Maintenance was given a facelift with Act XIV of 2011.

Spouses have an obligation to maintain each other during marriage. In the case of separation and, possibly, divorce, such obligation does not cease unless as provided otherwise according to law.

The obligation of maintenance ceases if the other party is found guilty of being the one who brought about marital breakdown such as committing adultery or abandoning, without a good and valid reason, the matrimonial home for two or more years.

Thus, if a person is not at fault for causing marital breakdown, he should be maintained. However, in the majority of cases, it is the wife who asks for spousal maintenance. During separation proceedings, just before the law mentioned above was enacted, a spouse could demand maintenance “in proportion to his or her needs and the means of the other spouse and taking into account also all other circumstances of the spouse” (article 46A of the Civil Code).

Article 54 of the Civil Code, dealing with maintenance, was given a makeover, thanks to Act XIV of 2011, bringing in line certain court practices that were already taking place and also introducing new legal provisions.

It is not the aim of this article to deal with all the provisions of maintenance but only with a wife’s right to compensation for the time she spent taking care of the household.

Does the law provide such a right?

Article 54(2)(d) lays down that if “... the ability of the party to whom maintenance is due to have earnings of whatever nature was diminished by reason of that party having, during the marriage, taken care of the household, the other party and the upbringing of the children of the marriage”, then such must be taken into consideration when calculating the amount of maintenance due.

In other words, the wife is being indirectly compensated for her non-pecuniary work in the home and also for the fact that, since she has been out of the labour market for a very long time, her employability has been drastically reduced.

This compensatory take on maintenance is done to achieve economic fairness in a post-separation, post-divorce situation.

Ira Mark Ellman, professor of law at the Arizona State University, “would allow compensation for loss of earning capacity as a result of decisions made during the marriage. The measure of the award is based on the claimant’s earning capacity at the end of the marriage compared to what it would have been had the claimant remained single, thus the ‘marriage cost’ that should be compensated.

This compensation is only available if the claimants’ ‘sacrifice’ of development of human capital assets is economically rational, with the exception of childcare because it is based on traditional values.

There need not be a corresponding gain to the non-sacrificing spouse” (Mary Kay Kisthardt, Re-Thinking Alimony: The AAML’s Considerations for Calculating Alimony, Spousal Support or Maintenance, Journal of the American Academy of Matrimonial Lawyers, Vol 21, 2008, 61-85, 70-71).

However, our law specifically includes the upbringing of children as part of a compensatory claim. Therefore, our law is more in line with (divorce mediation specialist) Robert Kirkman Collins’ theory of “marital residuals”.

It is based on the premise that, during the marriage, efforts were made by both spouses to maximise gains for the partnership and that, at divorce, there are residual economic benefits that flow from those efforts (Ibid, 71).

Thus, Maltese law compensates the person who, during marriage, has had to give up the career to help the other spouse in their career and/or to stay at home taking care of the household and/or children.

The only condition required is that the employability of that spouse would have been drastically reduced.

[email protected]

Ann Marie Mangion is a lawyer with a special interest in family and child law.

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