Maintenance refers to the financial provision of one’s living expenses. Spousal and child maintenance are often sought after in family law proceedings. This can be dealt with as part of divorce proceedings, or even where the Parties are not getting divorced.
In this article, we will examine the issues of spousal and child maintenance, and clarify situations where such maintenance will be ordered.

Spousal Maintenance
Where a spouse has been partially or wholly financially dependent on their partner during the marriage, there is a legal obligation for this partner to continue this financial provision. If there has been no financial reliance by a spouse on their partner, it would be difficult to succeed in applying for spousal maintenance.
Who can apply:

•  A wife can apply for spousal maintenance if her husband has neglected or refused to provide reasonable maintenance for her.
• A husband can only apply for spousal maintenance if he can establish that he is incapacitated, and his wife has neglected or refused to provide reasonable maintenance for him.

Child Maintenance
There is a legal obligation for both parents to contribute to the maintenance of their child. This obligation persists until the child is 21 years of age or has completed his or her first university degree.
Who can apply:

• Either parent may apply for child maintenance if the other parent has neglected or refused to provide reasonable maintenance for their child.
• Any person who is a guardian or has custody of the child may also apply for maintenance on behalf of the child.
• If the child is above 21 years of age, he or she may also apply for maintenance for themselves.
• Where the child is under 21 years of age but has a sibling above 21 years of age, this older sibling may apply for maintenance on the child’s behalf.

The Maintenance Amount Must Be Reasonable
When applying for maintenance, the key consideration is that the maintenance amount must be “reasonable”. What then does the concept of “reasonableness” entail?
There is no single fixed definition for this term. What constitutes reasonable maintenance would depend on what would be appropriate or fair given the circumstances at hand. As such, what qualifies as reasonable will vary on a case-by-case basis

Factors That Determine “Reasonableness”
As indicated above, the Family Courts will consider all circumstances of the case in deciding what would be a reasonable maintenance amount to order. Some of these factors include:

• the financial needs of the Party for whom maintenance is sought;
• the income, earning capacity (if any), property and other financial resources of the Party for whom maintenance is sought;
•  any physical or mental disability of the Party for whom maintenance is sought;
•  the age of each Party to the marriage and the duration of the marriage;
• the contributions made by each of the Parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family;
•  the standard of living enjoyed by the family, prior to breakdown of the marriage; and
• in the case of proceedings for divorce or nullity of marriage, the value to either of the Parties to the marriage of any benefit (such as a pension), that the Party will lose the chance of acquiring due to divorce.

In general, the Family Courts will aim to place each Party in the financial position in which they would have been, if their marriage had not broken down and both Parties had properly discharged their financial obligations and responsibilities towards each other.

How the Family Courts will decide
In an application for spousal maintenance, the Family Courts will determine whether maintenance is necessary in the circumstances and what a reasonable amount would be.

• In cases where the applying Party is financially reliant on their spouse, due to being out of the workforce or not earning as much as their spouse, the Family Courts would order maintenance to assist the applying spouse with their living expenses (at a level similar to the previous standard of living)
• In certain instances, the Family Courts may order a maintenance amount that will assist the applying spouse until they are able to reach financial independence.

As for child maintenance, the Family Courts will order the Party against whom maintenance is being sought to contribute an amount that is sufficient to support the child.

• There is no presumption that each parent is to contribute towards the child’s maintenance equally.
• Where the Party that maintenance is being sought against is unable to afford a large contribution, it may be that the child’s standard of living will have to adapt accordingly.
  It is important to note that maintenance will cease upon the death of the Party that is ordered to pay maintenance. Spousal maintenance will also cease once the Party receiving such maintenance has remarried.
  Given that the area of maintenance is a highly complex area of the law that hinges on the particular facts of the case, it is strongly recommended that you seek professional advice from an experienced Family Lawyer.