Maintenance(Types of Maintenance) under Nigerian family law is often referred to as alimony or spousal support. It is the financial support granted by a court to a spouse or child to ensure their welfare and sustenance. An order of maintenance is a significant relief available under Nigerian family law. The relief of maintenance is governed by the Matrimonial Causes Act (MCA) 1970 and the Child’s Rights Act (CRA) 2003.

Maintenance takes different forms depending on the nature of the relationship, circumstances of the parties, and the applicable legal framework. In essence, maintenance types include spousal, child, interim (pending suit), and maintenance under customary and Islamic law.

Spousal maintenance refers to the financial provision made by one spouse to another. This type of maintenance can be given during the marriage or after its dissolution. Section 70(1)(a&b) of the MCA, gives the court discretion to make an order for the maintenance of a spouse. It could be given pending the determination of matrimonial proceedings, or after a decree of dissolution, nullity, or judicial separation.

Spousal maintenance could be in form of:

• Periodic payments: This involves regular payments (e.g., weekly, monthly, or annually) from one spouse to the other for a specified period. It may continue until a set event, such as remarriage, death, or the recipient’s financial independence. Also it aims to provide ongoing financial support to the dependent spouse, enabling them to meet their daily living expenses. It is flexible and can be varied by the court if there is a change in circumstances of either party (Section 70(2) MCA).
• Lump sum payments: This is a one-off payment made by one spouse to the other. It offers a clean break and can be used to help the recipient spouse become self-sufficient. Oftentimes, it is awarded to compensate a spouse for their contribution to the marital property or family welfare. (Section 73 MCA).

The court in granting spousal maintenance takes into consideration certain factors including:

• Financial Capacity: The means and earning capacity of a spouse determines whether such spouse should be entitled to maintenance. The court assesses the present and likely future income, earning capacity, property, and financial resources of each party. Thus where a spouse has adequate means of income, a claim for maintenance cannot stand.
• Standard of living: Maintenance entitles the spouse to retain the standard of living enjoyed before the dissolution of the marriage. The court therefore observes the standard of living enjoyed by the parties before the breakdown of the marriage.
• Conduct of parties: Courts have in certain cases refused to award maintenance based on the conduct of the parties. Gross misconduct such as adultery, extreme violence or abandonment are considered in the grant of maintenance. In Cunningham v Cunningham, the court denied the wife maintenance as her misconduct caused the marriage’s breakdown.
• Age and health: The age of a party is a factor in considering the needs of the party.

Child maintenance refers to the financial support provided for the children of the marriage (Section 68 MCA). When giving child maintenance, the best interest of the child is usually the main consideration. Child maintenance is rooted in the principle that both parents have a legal and moral duty to cater for their children.

Parents have a non-negotiable duty to maintain their child and it continues even if the parents are divorced or separated. Sections 70 & 71 of the Child Rights Act, empowers the court to order parents to contribute to a child’s upkeep. This includes covering essentials such as food, clothing, shelter, education, and medical care. However, he court’s power to order maintenance for a child ends when the child turns 21 (Section 70(4) MCA). Exceptions lie where special circumstances exist, such as the child having a disability or pursuing higher education.

Interim maintenance is usually granted while the divorce proceeding is still ongoing. This is provided for in Section 70(1) of the Matrimonial Causes Act. It serves to provide immediate, short-term financial support during ongoing matrimonial proceedings. It ensures a spouse can meet living expenses and cover legal costs while the case is in court. These orders are temporary and terminate automatically upon the final determination of the divorce petition.

Maintenance in Nigerian family law is an important instrument that seeks to promote fairness and reduce negative economic impact. Whether spousal, child or interim maintenance, the aim remains the same. To prevent undue hardship and ensure the dependents are adequately catered for. Courts balance one party’s financial need against the other’s capacity, considering each case’s unique circumstances. Maintenance thus stands as a bedrock of family justice in Nigeria. It is a relief mechanism that upholds human dignity and promotes family welfare.

CONTRIBUTORS

Lead Partner EKO SOLICITORS AND ADVOCATES

Counsel EKO SOLICITORS AND ADVOCATES

Intern EKO SOLICITORS AND ADVOCATES

(TYPES OF MAINTENANCE, TYPES OF MAINTENANCE, TYPES OF MAINTENANCE)