“It does not mean that you can only give the dependant just enough to put a little jam on his bread and butter…” Harman J in Re Borthwick (decd), Borthwick v Beauvais [1949] Ch 395

A divorce can be daunting so it is ideal if both parties discuss the terms of spousal maintenance amicably to avoid further stress on the family and the children. However, if parties cannot reach an agreement to that effect, the Courts may order a man to pay maintenance to his former wife during the course of any divorce proceedings or after a grant of a divorce or judicial separation.

The Court may also order maintenance for the husband where he is incapacitated from earning a livelihood due to mental or physical injury, or due to ill-health.

The Courts of course, being just and fair, will assess whether a wife is entitled to such a payment and shall base its assessment primarily on the means and needs of the parties, depending on the circumstances of the case.

Harman J in Re Borthwick (decd), Borthwick v Beauvais [1949] Ch 395 held:

“Maintenance does not only mean the food she puts in her mouth, it means the clothes on her back, the house in which she lives, and the money which she has in her pocket ..”

Hence, the needs of the wife and the status and standard of living that she was used to when she was married will be considered when awarding maintenance. The amount to be awarded should not be one that is excessive but one that would be considered comfortable taking into consideration her mode of life.

Generally, the Courts will take into consideration these factors, which are non-exhaustive:

  1. Age of the wife;
  2. Years of marriage
  3. Earning capacity of the wife
  4. Financial support provided to the wife during marriage; and
  5. Whether there are any children from the marriage.

There have been instances where the Courts have awarded maintenance to the wife and children even where the wife has money of her own and is capable of finding a job and fending for herself.

However, the Court will also have regard to the degree of responsibility each party contributed to the breakdown of the marriage.  Hypothetically where the wife is the one who solely contributed to the breakdown of the marriage, it may mean less maintenance or no maintenance. That being said, this also does not mean that the “innocent” party gets much more than what would be reasonable having regard to the above factors. Maintenance is not to punish the “guilty” party.

In any case, seeking legal advice could assist you in coming to a more amicable agreement on the terms of spousal maintenance.

***

This article was written by Aileen Lau. Aileen heads the family law practice at Donovan & Ho. She has extensive experience in both contested and uncontested divorce proceedings, and has advised clients on family law matters ranging from child custody, payment of alimonies and division of matrimonial property. 

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