MAINTENANCE UNDER NIGERIA MATRIMONIAL PROCEEDING.
Maintenance is an aspect under family law in Nigeria, the law regulating family law practice in Nigeria can be categorized into statutory law, customary law and Islamic law. Statutory law regulating family law gained its inspiration from United Kingdom by the principle of statute of general application but the laws have been re-enacted on many occasions. By the provision of section 70 (1) & (2) 0f the MCA, there are two types of maintenance;
- Maintenance Pendente Lite ( Pending trial)
- Maintenance Per se (permanent)
Maintenance Pendente Lite (Pending Trial)
This was established under section 70(2) of Matrimonial Causes Act, the law provides that;
Subject to this section and to rules of court, the court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings.
This is basically like an interlocutory or interim order of the court, upon application of a party, court may grant an order of maintenance in favor of a party pending the final determination of the proceeding. This provision is reasonable in light of stringent and long procedure of court before the final judgment is given, on many occasions, interlocutory appeal might even go to appellate courts, then the substantive suit at the trail court will be put on hold. This may take many years before it gets to the end, there will then be need to maintain the wife and the children in all these long time. What the court is to take into consideration is the parties’ financial life and their conduct not the facts given rise to the marriage being irretrievable broke down .
According to the decision in Wilds V Wilds, it seeks to maintain the standard of living which the parties has been accustomed to until the litigation is concluded. However, we must be guided that death of any of the parties or conclusion of the case automatically brings the matter to an end. An application for maintenance pending the determination of the suit may be made Ex parte to the court in case of urgency.
Maintenance Per Se (Permanent)
This is an ancillary relief granted by court after the determination of divorce or separation proceeding. This was provided in section 70(2) MCA, the law provides that;
Subject to this section, the court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper
This maintenance can only be set aside by appellate court and it enure till the death of either of the parties or children of the marriage. This maintenance may not totally be permanent as the name suggests, it may be subjected to modification, review or terminated. The following factors can make permanent maintenance to be reviewed;
- The death of a party
- When the party receiving maintenance remarry or start cohabitation thus receiving another conjugal bliss
- Present economic reality
- Developments and increase in the needs of the children of the marriage.
Application For Maintenance
Maintenance is one of the ancillary reliefs in matrimonial causes. By the provision of order 16 of Matrimonial causes rule, there are 3 ways by which maintenance can be instituted, it can be brought as an ancillary relief in a matrimonial cause action; it can also be brought by an ancillary relief in and it can be instituted by way of motion on notice to be supported by an affidavit. Party instituting maintenance by way of motion on notice will have to depose to the reason why he did not institute it along the principal relief during the matrimonial cause. The party praying for maintenance will place before the court, the following;
- The property, income and financial commitments of the claimant
- The capability of the claimant to earn
- The property, income and financial commitment of the spouse of the claimant so far they are known to the claimant
- The capacity of the spouse of the claimant to earn income, so far, as that capacity is known to the claimant.
- Any financial arrangement in operation between the claimant and the spouse
- Any order of the court in which one of the parties is liable to make payment to each other and
- The ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.
Court in making assessment will consider these factors listed above viz-a-viz the provisions in section 70 of MCA and grant the maintenance order, the said order must be reasonably within the earning capacity of the husband. Extraneous facts must not be put into consideration and court must restrict himself to the facts before it.
In the case of Nana V Nana, the court of appeal reduced the maintenance order that was awarded by High Court from N75, 000 (Seventy-Five Naira) to N50, 000 (Fifty Thousand Naira) on the ground that the maintenance was excessive, it was further held that the appellant could not afford the same since his monthly income was N115,947.35.
Also, in Olu-Ibukun V Olu-Ibukun, Supreme Court set aside the order of maintenance, which was granted by the trial court on the ground that excessive and extraneous facts were taken into consideration when it ordered the sum of N1,200 (one thousand two hundred naira) per annum be paid as maintenance pending the suit to the petitioner.
When court is giving maintenance order, the earning capacity of the wife will also be considered. A good example is the decision in Mueller V Mueller, the court of appeal upheld the decision of the trial court refusing the appellant’s claim of N500, 000 (Five hundred thousand naira) because she admitted in her evidence that she makes N20,000 Twenty thousand naira) per day from the family business.
Enforcement of maintenance order.
The Matrimonial Enforcement rules only provide expressly for 2 ways of enforcing matrimonial decrees; writ of attachment and writ of sequestration. However, the law further allows use of any other enforcement mechanism recognized under high court enforcement rules across the federation, this implies that all the enforcement mechanism could be used. Enforcement of maintenance will not require notice to comply, however, decree shall not be enforced by attachment or sequestration without the leave of the court that made the order or decree was registered. Enforcement could be done in any state, but it will have to be registered in the state of enforcement as in a conventional enforcement mechanism.