This edition of the Legal Illumination of Akintunde Esan is focused on how to obtain an order of Court to compel a father refusing to be responsible for his child’s upkeep and school fees to be responsible by obtaining a maintenance order against such a father. It also focuses on the circumstances under which a wife can get an order of maintenance from the Court.
Maintenance Order
A maintenance order in this Legal Illumination is the order of Court compelling:
a) the father or guardian of a child to pay certain amount periodically or at once for the upkeep of the child, this may include the expenses for feeding, education, accommodation, medical bills and other necessaries.
b) the husband of a woman married under the Marriage Act to pay certain amount periodically or at once for the upkeep of the woman, this may include the expenses for feeding, accommodation, medical bills and other necessaries.
A maintenance order is usually made by the Court in a suit for divorce or child custody or maintenance or the three combined in one suit as a trinity suit. It should be noted that in a suit where you do not file for all of the three the Court would only grant what you filed or prayed for as the Court is not known to grant what is not prayed for except in exceptional cases.
The Maintenance of a Child
Every child has the right to Right to
parental care, protection and maintenance and the child has the right, in
appropriate circumstances, to enforce this right in the Family Court. However,
the right to maintenance by his parents or guardians is subject to the extent of
their means.[1]
In answering the question on whose is the responsibility to pay
for the upkeep or maintenance of a child,
Alagoa, J.C.A in Tabansi v. Tabansi
(2008) [2]
answered
the question as follows:
"There
is a plethora of cases on this subject matter especially by the Apex Court. The
education, maintenance and upkeep of a child are serious and sensitive matters
which should not be hamstrung by technicalities. What is best for the child
should be the paramount consideration of the Court. The Petitioner has
submitted that the upkeep of the child is the responsibility of both parents.
At common law it is the responsibility of the man to take care of his
family."
The
Maintenance of a Wife
The wife of a marriage under the Matrimonial Causes Act (M.C.A) is
entitled to claim maintenance in the High Court, if her husband wilfully
neglected to maintain her without filing for divorce or any matrimonial cause.
In essence, a wife may be claimed for maintenance from her husband even if
there is no pending suit for divorce or separation.[3]
The obligation of the husband to maintain his wife is a discretionary power of the Court to grant[4].It has been held that before a Court makes an order for maintenance, it must take some factors into consideration. These includes[5]:
(a) the parties income;
(b) earning capacity and by implication properties owned by each
party
(c) financial resources;
(d) financial needs and responsibilities;
(e) standard of life of the parties before the dissolution of
the marriage, their respective ages and the length of time they were husband
and wife.
In the case of Mrs.
Rose Ndibulum Enwezor v. Mr. Christopher Ifeanyi Enwezor[6], the High Court refused to grant Mrs Enwezor an
order of maintenance on the ground that she was on the same salary grade with
her husband and her status or standing in life was/is
parallel to that of the husband.
Can a Husband claim for
Maintenance from his Wife
Indeed under the English
jurisdiction, the Courts have a discretion to order wives to pay maintenance to
their husbands especially where a wife is in a better financial position than
the husband. Thus, a husband can successfully petition for divorce and also ask
for maintenance[7].
This discretion fortunately is not part of the Nigerian Law. In Nigeria, the
husband is supposed to take care of his wife[8].
Payment of Maintenance from the Salary or Income of a Father or a Husband
The law permits that the upkeep, maintenance, school fees and other necessaries of a child be deducted from the salary or income of the father or guardian of a child. A maintenance order can as well be enforced by getting an order of attachment of the salary of the father or husband who has refused to comply with the order.
Conclusion
I am of the school of thought that, it is not in the overall interest of a child for a parent to initiate contempt proceedings that would end in the other parent been imprisoned in the name of enforcing a maintenance order or judgment. It is better to explore other statutory options of enforcing such a judgment or order and the attachment of salary or income is just one of such options.
In case you need further legal illumination on child or wife maintenance or both you may contact Akintunde Esan (the Legal Adviser Online).
[1]
Section 14 Child’s Right Act
[2]
LPELR-4365(CA) (Pp. 20 paras. C)
[3]
Per Ikyegh ,J.C.A (Pp. 30 paras. A) Obajimi v. Obajimi (2011) LPELR-4665(CA)
[4]
Nanna
v. Nanna (2006) 3 NWLR Pt.966 page 1, Erhahon v. Erhahon (supra) Olu-Ibukun v.
Olu-Ibukun (1974) Supreme Court of Nigeria Judgment.
[5]
Negbenebor
v. Negbenebon (1971) 1 All NLR page 210, Ibeawuchi.Per Ndukwe-Anyanwu
,JCA (Pp. 17-18, paras. C-A) Okaome v. Okaome & Anor (2016)
LPELR-41460(CA)
[6] Per Hussein Mukhtar ,JCA (Pp. 22-23, paras.
C-D) Mrs. Rose Ndibulum Enwezor v. Mr. Christopher Ifeanyi Enwezor &
Anor (2012) LPELR-8544(CA)
[7]
Calderbank
v. Calderbank (1975) 3 WLR page 586.
[8] Per Ndukwe-Anyanwu ,JCA (P. 19, paras. A-C) Okaome v. Okaome & Anor (2016) LPELR-41460(CA)
Click to also view:
CUSTODY OF A CHILD: WHAT THE COURT WILL CONSIDER IN AWARDING CUSTODY OF CHILDREN IN NIGERIA
