UNIVERSITY OF THE WEST INDIES ST AUGUSTINE CAMPUS FACULTY OF

LAW

FAMILY LAW 1 (LAW 3210)

WORKSHEET 4

MAINTENANCE DURING AND AFTER THE BREAKDOWN OF THE

RELATIONSHIP

LEARNING OBJECTIVES
At the end of this worksheet you should be able to:
- Explain the duty of maintenance between husband and wife at common law -
Explain general principles related to maintenance namely:
o Clean Break o Equality
o Fair and Just Division
- Explain the regional statutory approaches to maintenance during marriage and
cohabitation
- Explain the regional statutory approaches to maintenance upon dissolution of
marriage and cohabitation.
- In discussing regional statutory approaches to maintenance, explain:
o Who is entitled to maintenance o When entitlement to maintenance arises
o What, if anything, disentitles a person to maintenance (consider
conduct) o The factors the court considers in awarding maintenance

LEGISLATION:

Anguilla - Matrimonial Proceedings and Property

Ordinance 1990 – S. 23-26, 28, 31, 34
Antigua & Barbuda - Divorce Act 1997
Barbados - Family Law Act Cap. 214
Belize - Supreme Court of Judicature Act, Cap. 91, Part XI Dominica -
Matrimonial Causes Act, UK
Grenada - Matrimonial Causes Act, UK, Maintenance Act,

35 Course Outline and Worksheets prepared by Afiya France

 Cap 180
Jamaica - Matrimonial Causes Act 1989, The Maintenance
Act 2005
Montserrat - Matrimonial Causes Act, Cap. 50
St Kitts & Nevis - Divorce Act 2005 St Lucia -
Divorce Act 1973
St Vincent and the - Matrimonial Causes Act, Cap. 176
Grenadines
Trinidad and Tobago - Matrimonial Proceedings and Property, Ch 45:51
- The Cohabitational Relationships Act Ch 45:55

STRONGLY RECOMMENDED GENERAL READING (applying to all stages of

married and cohabitational relationships)
- Karen Nunez-Tesheira, Commonwealth Caribbean Family Law: Ch 8, 9

MAINTENCE DURING MARRIAGE

READINGS
- Zanifa Mc Dowell, “Anomalous Maintenance Legislation: A Folly Fixed in
Fault” [1997] 2(1) Carib. L.B. 37
- Jonathan Herring, Family Law Ch 4, pgs 156-157

COMMON LAW DUTY TO MAINTAIN

At common law a husband is under duty to maintain his wife. Gray v Gray [1976] 3 WLR
181 defines this as entitlement by a wife to, “a roof over her head and subsistence at the
hands of her husband”.

Once a wife committed the matrimonial faults of desertion and adultery however, her
rights to maintenance ended. Per Gray v Gray, “Desertion suspended the wife’s rights to
shelter and subsistence but these could be revived if she returned to her husband. One
act of adultery, provided it was not condoned destroyed her rights, regardless of the
conduct of her husband, provided he neither connived at nor, by his conduct, conduced
the adultery”.
- Gray v Gray [1976] 3 WLR 181
- Naylor v Naylor [1961] 2 All ER 129
- Lilley v Lilley [1959] 3 All ER 283

36 Course Outline and Worksheets prepared by Afiya France

 - Chilton v Chilton [1952] 1 All ER 1322 @1325

MAINTENANCE/SEPERATION AGREEMENTS
A private agreement between married couples or de jure spouses governing the rights and
obligations as between them while they live separately. Such provision may include
financial payments between the spouse, property allocation, rights and obligations with
respect to children of the relationship, including agreement on who has the financial
obligation to maintain the children.
The Court’s approach to such agreements is that once there is intention to create legal
relations, the agreement can be legally enforced, but, even so, they are open to alteration
by the Courts as it would not tolerate to ousting of its jurisdiction by private agreements.
- Balfour v Balfour [1919] 2 KB 571
- Pounds v Pounds [1994] 4 All ER 777
- Harris v Manachan [1996] 4 All ER 454

E.g.:
See sec 49 of the Barbados Family Law Act Cap 214 on “Cohabitation Agreement” and
“Separation Agreement”. These agreements apply both to de facto and de jure spouses
under the Barbados legislation.

THE STATUTORY DUTY TO MAINTAIN

Statutory duty to maintain during marriage in the jurisdictions may be non-fault based
or fault based. Trinidad and Tobago has both a non –fault based and a fault based
legislative regime.
In considering statutory regimes for married or de jure spouses, consider whether fault or
conduct plays a role.

Fault based maintenance regime- “willful neglect to maintain”

- See e.g. sec 28 TTMPPA (High Court)
- Sec 13 Grenada Maintenance Act Cap 180 (Magistrate’s Court)

Common Law cases are applicable, namely:

- Naylor v Naylor supra
- Gray v Gray supra
- Jones v Newtown and Llamidloes Guardians [1920] 3 KB 318

37 Course Outline and Worksheets prepared by Afiya France

Non-fault maintenance regime- “failure to provide reasonable maintenance” with fault
factors
- See e.g. sec 24 Trinidad and Tobago Family Law Guardianship of Minors,
Domicile and Maintenance Act (FLA)(Magistrate’s Court)
- Sec 36 St Vincent and the Grenadines Matrimonial Causes Act (Magistrate’s
Court)
Non-fault maintenance regime- “failure to provide reasonable maintenance”
- Sec 50 Barbados Family Law Act Cap 214 (BFLA)
- Sec 4 Jamaica Maintenance Act 2005 (JMA)

Factors to be taken into account

- See e.g. sec 25(5) TFLA (note the role of conduct in this “non-fault” jurisdiction)
- Sec 53 BFLA
- Sec 5, 14(4) JMA

E.g. sec 25(5) TFLA lists the factors to be taken into account thus:
(a) The income, earning capacity, property and other financial resources which each of the
parties to the marriage has or is likely to have in the foreseeable future
(b) The financial needs, obligations and responsibilities which each of the parties to the
marriage has or is likely to have in the foreseeable future;
(c) The standard of living enjoyed by the parties to the marriage before the occurrence of the
conduct which is alleged as the grounds of the application;
(d) The age of each party to the marriage and the duration of the marriage;
(e) Any physical or mental disability of either of the parties to the marriage;
(f) The contribution made by each of the parties to the welfare of the family, including any
contribution made by looking after the home or caring for the family;
(g) Any other matter which in the circumstances of the case the Court may consider relevant,
including, so far as it is just to take it into account, the conduct of each of the parties in
relation to the marriage

MAINTENANCE DURING COHABITATION

Trinidad and Tobago, Barbados and Jamaica have statutory provisions granting
cohabitants, or de facto spouses the right to apply for maintenance during cohabitation.

38 Course Outline and Worksheets prepared by Afiya France

TRINIDAD AND TOBAGO
The Cohabitation Relationships Act 1998 governs maintenance during cohabitation for de
facto spouses

Definition of Cohabitant
- sec 2 TTCRA
“cohabitant” means—(a) in relation to a man, a woman who is living or has lived with a man as
his wife in a cohabitational relationship; and (b) in relation to a woman, a man who is living with
or has lived with a woman as her husband in a cohabitational relationship;

“cohabitational relationship” means the relationship between cohabitants, who not being married
to each other are living or have lived together as husband and wife on a bona fide domestic basis

Which court can the petitioner apply too?

- sec 6 TTCRA - High Court or Magistrate Court

What are the pre-requisites to applying for a maintenance order?

- Blacks v Douglas TT 2006 HC 88
- Sec 14 TTCRA

- See sec 7 TTCRA

The Court shall not make an order under section 6 unless it is satisfied that—
(a) The applicant lived in a cohabitational relationship with the respondent for a period of
not less than five years; or
(b) The applicant has a child arising out of the cohabitational relationship; or
(c) The applicant has made substantial contributions of the kind referred to in section 10,
And that failure to make the order would result in grave injustice to the applicant.

- See sec 15 (1) TTCRA

A Court may make a maintenance order, where it is satisfied as to one or more of the following
matters:
(a) That the applicant is unable to support himself adequately by reason of having the care and
control of a child of the cohabitational relationship, or a child of the respondent, being in either
case, a child who is—
(i) under the age of 12 years; or
(ii) in the case of a physically disabled or
mentally ill child, under the age of 18 years;
(b) That the applicant’s earning capacity has been adversely affected by the circumstances of the
relationship, and in the opinion of the Court a maintenance order would increase the applicant’s

39 Course Outline and Worksheets prepared by Afiya France

 earning capacity by enabling the applicant to undertake a course or programme of training or
education; and
(c) Having regard to all the circumstances of the case, it is reasonable to make the order

What are the factors that the Court would take into account in granting the order?
- La Borde v Gilbert TT 2005 HC 87
- Manjani v Fernandes TT 2003 HC 93
- Stewart v Theodore TT 2005 HC 9 (no maintenance ordered)

- See sec 15(2) TTCRA

In determining whether to make a maintenance order and in fixing the amount to be paid pursuant
to such an order, the Court shall have regard to—
(a) the age and state of health of each of the cohabitants including the physical and mental
disability of each cohabitant;
(b) the income, property and financial resources of each cohabitant;
(c) the financial needs and obligations of each cohabitant;
(d) the responsibilities of either cohabitant to support any other person;
(e) the terms of any order made under section 10 with respect to the property of the cohabitants;
(f) the duration of the relationship;
(g) a standard of living, that in all the circumstances is reasonable;
(h) the extent to which the applicant has contributed to the income, earning capacity, property
and financial resources of the other cohabitant;
(i) the terms of any order made by a Court in respect of the maintenance of a child or children
in the care and control of the applicant;
(j) any fact or circumstance that, in the opinion of the Court, the justice of the case requires to
be taken into account.

Note:
- when maintenance order ceases to have effect- sec 17, 18
- duration of order- sec 19
- power of court to revoke or vary order- sec 20
- powers of court in making order- sec 21
- Cohabitation Agreement- Part IV

BARBADOS
The Family law Act Cap 214 governs maintenance during cohabitation for de facto spouses

40 Course Outline and Worksheets prepared by Afiya France

Definition of Union other than Marriage
- sec 39 BFLA
Union other than marriage means the relationship that is established when a man and woman
who, not being married to each other, have cohabited continuously for a period of 5 years or more
and have so cohabited within the year immediately preceding the institution of the proceedings

Note:
In Barbados, unlike Trinidad and Tobago, the same statutory regime regulates
maintenance during marriage for de facto and de jure spouses. Thus section 50 and 53 are
applicable in determining
(1) the basis upon which the court would order maintenance (ie “where one party is
unable to maintain themselves to the extent that the other party is reasonably able to do
so”), and
(2) the factors to be taken into account in ordering maintenance
JAMAICA
Definition of spouse
- sec 2 JMA
"spouse" includes-
(a) a single woman who, for a period of not less than five years, has cohabited with a
single man as if she were in law his wife; and
(b) a single man who, for a period of not less than five years, has cohabited with a
single woman as if he were in law her husband.

Note:
In Jamaica, unlike Trinidad and Tobago, the same statutory regime regulates
maintenance during marriage for de facto and de jure spouses. Thus sections 4, 5 and
14(4) are applicable in determining
(1) the basis upon which the court would order maintenance (i.e. “where maintenance
is necessary to meet the reasonable needs of a spouse, where that spouse cannot practicably
meet the whole or any part of those needs and the other spouse is capable”), and
(2) the factors to be taken into account in ordering maintenance.

MAINTENCE AFTER THE BREAKDOWN OF MARRIAGE

READING
- Jonathan Herring chap 5, pgs 205-270

41 Course Outline and Worksheets prepared by Afiya France

It is academic to consider the issue of maintenance only after the breakdown of marriage
as the entire asset base of the couple needs to be redistributed. Therefore, after the
dissolution of marriage, an applicant would apply for property re-distribution (the topic
of the coming worksheet) in addition to the application for maintenance. Thus the general
philosophical principles related to maintenance set out below also apply to an application
for property re-distribution.

General Principles related to Maintenance

Clean Break
An order that allows the parties for have financial independence from each other. If a
clean break order is not made parties can have financial obligations towards each other
for the rest of their lives.
Such an order is ideal as it allows the parties to put the past behind them and thus avoid
bitterness and begin a new life not overshadowed by the broken down relationship. Often
because couples are so financially enmeshed during marriage it is not always possible or
fair to make a clean break order.
When a clean break order cannot be immediately obtainable, the court also has the option
of making a “deferred clean break order”.

Description
- Chang- Kit v Chang-Kit TT 2008 HC 87
- Minton v Minton [1979] AC 593

Immediate Clean Break Order

- Ramlochan v Ramlochan TT 1996 HC 178

Deferred Clean Break Order

- Flavell v Flavell [1997] 1 FCR 332

When a Clean Break Order is Appropriate

- Short childless marriage o Hobhouse v
Hobhouse [1999] 1 FLR 961
- Continued payments offer no benefit to the
recipient o Ashley v Blackman [1988] 2 FLR 278
- Parties are very wealthy o White v White [2001]
1 All ER 1

42 Course Outline and Worksheets prepared by Afiya France

 - Both spouses have well established careers o
Burgess v Burgess [1997] 1 FLR 89
- There is antagonism between the parties

When a Clean Break Order is Inappropriate

- There are still young children o Suter v Suter and
James [1987] 2 FLR 232
- Uncertainty over the recipient’s financial future o
Whiting v Whiting [1988] WLR 176
- Lengthy marriage o SRJ v DWJ (Financial
Provision) [1999] 2 FLR 176

Equality
THE ENGLISH MODEL- “the yardstick of equality”
There is no presumption of equal division, but equality should not be departed from
unless there are good reasons for doing so. The court exercises its discretion to give each
party an equal opportunity for a new independent beginning.
- White v White [2001] 1 All ER 1
- Miller; Mc Farlane [2006] 3 All ER 1

When to depart from equality

- Short Marriage o Miller v Miller [2006] 3 All ER 1
- Earning spouse did nothing in relation to the property during
marriage/nonmarital property o S v S (Non-matrimonial
Property: Conduct) [2006] EWHC 2793 (Fam) o J v J [2009]
EWHC 2654 (Fam) o K v L [2010] EWHC 1234 (Fam)
- Exceptional contributions by one spouse o Sorrell v Sorrell
[2006] 1 FCR 62
o Charman v Charman [2007] EWCA Civ 503 o Lambert v
Lambert [2002] 3 FCR 673
- Parental Contribution/Inheritance o Dharamshi v
Dharamshi [2001] 1 FCR 492 o N v N [2010] EWHC 717
o B v B (Ancillary Relief) [2008] 1 FCR 613
- The parties kept their financial arrangements separate during
marriage o J v J [2009] EWHC 2654 (Fam)
- Gross Misconduct o S v S (Non-matrimonial Property:
Conduct) [2006] EWHC 2793 (Fam) o K v K (Financial

43 Course Outline and Worksheets prepared by Afiya France

 Provision: Conduct) [1990] FCR 372 o A v A (Financial
Provision: Conduct) [1995] FLR 345

The Caribbean Approach: Fair and Just Division

The Commonwealth Caribbean has shied away from a pure equality approach, seeking
rather to effect fair and just division. The following table shows 4 approaches used in
different jurisdictions (as surmised from pgs 181-182 Karen Tesheira, Commonwealth
Caribbean Family Law). The CC jurisdictions generally all use a list of statutory factors
to guide on how maintenance should be awarded.
Reasonable Equality as a Yardstick Means and Ability Means and Ability
Requirements towards Self
Sufficiency

e.g. S. 27(1) TTMPPA Grenada (MCA 1973 as e.g. S. 50 Barbados s. 152(1) Belize SCJA
- the “tailspiece” amended) FLA, (married); s 148I SCJA
- Applies only to - Applies only to s.20 Jamaica MCA, s. 15 (unmarried)
married persons married persons and TTCRA - Based on
big money cases - B’dos and J’ca- matrimonial
married and fault model
unmarried - payable to wife
- TT- only applies alone
to married - Self-
persons sufficiency not
a statutory
objective

TRINIDAD AND TOBAGO APPROACH- the “tailpiece”

- Belgrove v Belgrove TT 2003 HC 114
- Chang-Kit v Chang-Kit TT 2008 HC 87

This approach entails the consideration of factors listed in the relevant legislation of the
country. The court is not constrained by notions of equal division. Once the statutory
factors are considered, the Court is mandated only to use its discretion to attain a fair
outcome.
- Gonzalez v Gonzalez TT 1997 M 106

44 Course Outline and Worksheets prepared by Afiya France

THE STATUTORY FACTORS

Jamaica
Applicable legislation: Jamaica Matrimonial Causes Act 1989 (JMCA)
- Maintenance pending application for divorce- sec 23
- Maintenance post divorce – sec 20
- Factors- the JMCA says at sec20(4) that the factors to be used are those set out
at sec 14(4) Jamaica Maintenance Act (JMA)

Trinidad and Tobago

Applicable legislation: Trinidad and Tobago Matrimonial Proceedings and Property Act
(TTMPPA)
- Maintenance pending application for divorce- sec 23
- Maintenance post divorce – sec 24
- Factors sec 27(1)

27(1) In deciding whether to exercise its powers under section 24 or 26 in relation to a

party to the marriage and, if so, in what manner, the Court shall have regard to all the
circumstances of the case including the following matters:
(a) the income, earning capacity, property and other financial resources which each of the
parties to the marriage has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each of the parties to the
marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) contributions made by each of the parties to the welfare of the family, including any
contribution made by looking after the home or caring for the family;
(g) any order made under section 53;
(h) in the case of proceedings for divorce or nullity of marriage, the value to either of the
parties to the marriage of any benefit (for example, a pension) which, by reason of the
dissolution or annulment of the marriage, that party will lose the chance of acquiring,

and so to exercise those powers as to place the parties, so far as it is practicable and, having
regard to their conduct, just to do so, in the financial position in which they would have
been if the marriage had not broken down and each had properly discharged his or her
financial obligations and responsibilities towards the other

45 Course Outline and Worksheets prepared by Afiya France

CONSIDERING THE FACTORS

(a) the income, earning capacity, property and other financial resources which each
of the parties to the marriage has or is likely to have in the foreseeable future

- Pinard v Pinard TT 2009 143

- Belgrove v Belgrove TT 2003 HC 114
- A v A (Financial Provision) [1998] 2 FLR 180
- White v White (supra)
- Miller v Miller (supra)
- Leadbeater v Leadbeater [1951] 1 FLR 789

Third party earnings and earning capacity

- Suter v Suter and Another [1987 Fam. 111

(b) the financial needs, obligations and responsibilities which each of the parties to
the marriage has or is likely to have in the foreseeable future
- White v White (supra)
- Miller v Miller (supra)
- Lambert v Lambert [2002] 3 FCR 673
- Gonzales v Gonzales TT 1997 M 106
- Pinard v Pinard TT 2009 HC 143

(c) the standard of living enjoyed by the family before the breakdown of the
marriage
- Miller v Miller (supra)
- S v S [2008] 2 FLR 113
- Bloomfield v Bloomfield JM 2004 SC 106 (quoting Attwood v Attwood [1968]
3 All ER 385- principles related to standard of living)
- Pinard v Pinard TT 2009 HC 143

(d) the age of each party to the marriage and the duration of the marriage
- Attar v Attar [1985] FLR 649
- Miller v Miller (supra)
- C v C (Financial Provision: Short marriage) [1997] 2 FLR 26
- Pinard v Pinard TT 2009 143

46 Course Outline and Worksheets prepared by Afiya France

 (e) any physical or mental disability of either of the parties to the marriage
- C v C (Financial Provision: Personal Damages) 1995 2 FLR 171
- Seaton v Seaton [1986] 2 FLR 398
- Ashley v Blackman [1988] 2 FLR 278

(f) contributions made by each of the parties to the welfare of the family,
including any contribution made by looking after the home or caring for the
family
- White v White (supra) - Miller v Miller (supra)
- Chang-Kit v Chang-Kit TT 2008 HC 87
- Lambert v Lambert [2002] 3 FCR 673

(g) Loss of benefit or pension

- Roberts v Robert [1986] 2 All ER 483
- Cotgrave v Cotgrave [1992] 4 All ER 537 CA

(h) Conduct (useful to compare how relevant conduct is in the list of factors for
TT, BB and Jca)
- Watchel v Watchel [1973] Fam. 72 CA- marked the change in the court’s
attitude
- S v S [1992] 51 WIR 286
- G v G [ 2006] EWHC 2010
- A v A (Financial Provision: Conduct) [1990] 2 FLR 225
- Shah v Snaggs TT 2015 HC 121
- Heeralal v Heeralal TT 2013 HC 263 - Morgan v Morgan TT 2011 HC 61

MAINTENCE AFTER THE BREAKDOWN OF COHABITATION

The same legislative instruments set out above in respect of maintenance during
cohabitation for de facto spouses for Trinidad and Tobago, Barbados and Jamaica apply
for maintenance after cohabitation.

47 Course Outline and Worksheets prepared by Afiya France

Trinidad and Tobago
- Time within which application must be made once cohabitation has ceased- sec
8 TTCRA (2 years) o Bishop v Chalerie
TT 2007 HC 89

Jamaica
- Application for maintenance upon termination of cohabitation- sec 6 JMA
- Time within which an application must be made- sec 6(2) (12 months)

Barbados
- Time within which application must be made once cohabitation has ceased – sec
39 FLA (one year) o Sheppard v Taylor BB 1987 HC 35

GENERAL THINGS TO NOTE

Types of Maintenance Orders: - Maintenance

pending suit o Peacock v Peacock [1984] 1
WLR 532
o Re T (Divorce: Interim Maintenance Discovery) [1990] 1 FLR 1
- Lump Sum payments
o Hughes v Hughes [1993] 45 WIR 149 o
Ramlochan v Ramlochan TT 1996 HC 178
- Periodical Payment Orders o
White v White [2001] AC 596

Termination of Maintenance Order

- Remarriage of applicant o Atkinson v Atkinson [1995] 2 FLR 356 – what
happens when the applicant cohabits with someone else as opposed to re-
marrying?
o Suter v Suter [1987] 2 FLR 232
- Death of either party
- Expiry of Maintenance Order

Variation and Discharge of Maintenance Order

- Clarke v Clarke BB 1990 HC 36
- Jessel v Jessel [1979] 1 WLR 1148 CA
- Belle v Belle BB 1991 HC 35

48 Course Outline and Worksheets prepared by Afiya France

Enforcement of Maintenance orders- High Court, Magistrate’s Court
- Garnishment of Wages o Boucher v
Boucher BB 1994 CA 36

Breach of Maintenance Order

- Imprisonment
- Contempt Proceedings

*********

TUTORIAL QUESTIONS

1. Predictably, one question for you is, should maintenance be abolished? Can
we justify its extension in Jamaica, Trinidad and Tobago and Belize recently to
non-marital unions?

2. In the Trinidad and Tobago High Court decision in Pinard v Pinard TT 2009 HC
143, the court, while it affirmed the fair and just approach in the making of
maintenance and property adjustment orders, acknowledged the criticism
advanced by counsel for the Petitioner that our local judges … with matrimonial
experience have attempted to stay away from looking at things through the prism of
equality.

With reference to the Commonwealth Caribbean, critically discuss the extent

to which the fair and just approach, without the express inclusion of the equality
principle, may not in the final analysis, achieve fairness and justice

3. David and Shelly marry in 1999. David is a lawyer and Shelly is a homemaker.
Shelly completes a year of an associate degree at a community college but stops
to take care of David’s mother who was ailing. Soon after she has their first
child. They have five children. Shelly takes care of the children and the
household and spends one day a week assisting with clerical duties in David’s
law office. The couple has an understanding that David will earn the income
needed for the family and Shelly will assume responsibility for the household
and the children.

49 Course Outline and Worksheets prepared by Afiya France

The couple live in a house owned by the couple as joint tenants and paid for
from David’s earnings. All their children are now grown and Shelly now
spends two days a week volunteering at a children’s home. There is a
household helper who cooks and cleans for the couple. David is retired from
his law practice.

The couple has drifted apart. Shelly begins a relationship with a fellow
volunteer. When David learns of the relationship, he stops providing Shelly
with the usual allowance.

ANSWER BOTH A AND B

I. Advise Shelly on whether she can apply for financial provision from
David.

AND

II. Assume that David and Shelly divorce in March 2020. Advise Shelly
on whether she can obtain maintenance from David.

50 Course Outline and Worksheets prepared by Afiya France