Maintenance has always been a bone of contention dur-ing separation, other bones of contention being the matrimonial home, family assets and custody of and access to children. However, now with the promulgation of divorce into Maltese law, the issue of maintenance resulting from divorce has taken on a new tangent, a different tone to our way of thinking. And, as regards separation, the issue of maintenance has been amended. Changes have been made that need to be discussed.
First of all, maintenance still includes food, clothing, health and habitation and, in the case of children, half the education and half the medical expenses.
Maintenance is still due in proportion to the want of the person claiming it and in proportion to the means of the person paying maintenance.
Amended article 54(2) lays down that maintenance “...shall be determined having regard to the means of the spouses, their ability to work and their needs and regard shall also be had to all the other circumstances of the spouses and of the children...” To be more precise, this is not really a new addition because the Civil Court (Family Section) has already been deciding maintenance issues along those lines; now it has been written down in black on white to do away with any misconceptions.
The new sub-article 2 provides for regard to be taken to the needs of the children, for any disability, whether mental or physical, although disability pension will be taken into account when calculating the amount due in maintenance and for circumstances of illness where, due to such illness, the ability of the spouses to maintain themselves and/or their children is diminished.
An interesting provision has been added regarding employability. The fact that the person to whom maintenance is due, and in many instances it is the wife, has had her chances of employability diminished due to the fact that she has been out of the workforce for many years to take care of the children, the household and the husband will be taken into consideration when calculating maintenance.
This is a protective clause to the stay-at-home wife or the wife who had to abandon her career to take care of the family. A middle-aged woman who has been out of the workforce for more than a decade or two has limited chances, if any at all, of being employed.
The sub-article takes also into account every other income or benefit the spouses may receive other than social assistance paid to them under the Social Security Act.
Accommodation requirements of the spouse and of the children and also the amount that would have been due to each of the parties, such as a benefit under the pension scheme, which are being forfeited due to separation, are taken into consideration. Is this fair?
For this to be applied across the board without being assessed on a case by case basis would give rise to an injustice. An assessment should be carried out, not merely on the fact that there was a man and a woman who got married and eventually separated. In calculating and allotting maintenance, a thorough assessment should be made as to the depth of the marriage and how much each of the parties contributed to the relationship to make that marriage work. And contributions are not simply of the financial type but, especially, emotional, in other words, how much have the spouses invested in such a marriage.
What about in divorce? Are the provisions laid down in separation applicable to divorce as regards maintenance?
In the divorce law there is a new provision which aims to protect the right to maintenance in the form of a monetary guarantee. In fact, the law states that maintenance can be safeguarded by means of a guarantee in the form of a sum not exceeding the amount of maintenance for five years. The court will only order such a guarantee if it is shown that the person providing maintenance has, for example, not given maintenance consistently to the detriment of the children or spouse.
But, should this guarantee be reserved solely to divorce proceedings?
What about separation proceedings? Shouldn’t the spouse and the children be offered such protection too if the person is not providing maintenance consistently pendente lite?
There obviously is the provision of a lump sum payment but a guarantee similar to that provided for in divorce would still have been beneficial to the parties involved in separation.
What happens after remarriage? Will spousal maintenance continue to be provided once the divorcee subsequently remarries?
If a divorcee receiving maintenance remarries or enters into a “personal relationship” – it seems that this also includes cohabitation – which, obviously, requires financial support, then that person entitled for maintenance shall forfeit it. This provision is also applicable to separation proceedings.
The provisions regarding maintenance to children up to the age of 23, so long as they are in full-time education, and to loco parentis (that is, maintenance provided for children whom one of the spouses treated as his/her own children even though they were not), have been incorporated in separation proceedings too and not only in divorce cases.
The incorporation of divorce into Maltese law has brought many changes to Maltese family law, even to areas where we did not need the divorce legislation for such changes to take place, such as maintenance.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.