Custody and maintenance, as we know, are usually issues to be discussed and determined upon a divorce; but do you all know that custody and maintenance, like the prevention of family violence, can also be requested for during marriage?

The Family Court is the forum where all the family disputes are resolved; as requests for such relief are common and in many cases, necessary, the Family Court has been instrumental in simplifying the procedures and process for such proceedings for the general public so as to enable them to seek assistance speedily.

I write this article in the hope that it will be able to reach members of the public, especially those who are facing some form of family dispute at home and who are at a loss as what to do. This is so that the appropriate relief can be sort and our children shield from the turmoil of an unhappy marriage, can grow up secure and not perpetuate the vicious cycle of unhappiness and violence for the next generation.

Custody

Anyone can ask for custody of the children at any time during the marriage, separation or during proceedings for divorce. Custody can be granted to one parent solely, or it can be granted to both parents jointly.

A joint custody order requires both parents to be jointly responsible for all the important decisions affecting a child’s life, for example, education, religion etc. Naturally, joint custody orders are only appropriate where both parents are qualified and able to co-operate in caring for the child. Where the spousal relationship is acrimonious, joint custody orders would be unworkable.

The considerations for awarding custody are the wishes of the parents, the wishes of the child he or she is old enough to decide and most importantly, what would be in the best interest of the child. The Court considers the interests of the child as paramount to all other considerations and may give custody to a relative or a child welfare organization, if necessary.

When custody is awarded to one parent, access will usually be given to the other on a regular basis. Access cannot be denied to the parent who does not have custody unless it is clearly not in the interests of the child; as far as possible, an innocent child should never be deprived of the love and the attention of either parent.

Maintenance

Under the law, a wife/ex-wife and children are entitled to maintenance.

Where maintenance of the wife/ex-wife is concerned, an aggrieved party may apply for it any time during marriage, separation, during or after divorce; it is not necessary to file for a divorce before applying for maintenance. If maintenance is ordered, it will last until the wife/ex-wife dies or remarries.

The amount ordered depends on various factors like the expense and earning capacity of both parties, the duration of the marriage etc. The objective is to enable the wife/ex-wife to achieve the standard of living enjoyed as if the marriage had not broken down.

As for maintenance of children, both parents are responsible for maintaining the child. Whoever has custody of the child can apply for maintenance and the Court can order that either both parents pay maintenance for the child. The order for maintenance will last until the child is 21 years old or when he or she has completed their education and is financially independent, whichever is earlier.

How much maintenance to give will depend on the financial needs and expenses of the child and of course, the financial resources of the parents, amongst other things.

Maintenance whether for the wife/ex-wife or children, can be varied at any time if there is a material change in circumstances justifying the variation. So for instance, if a child suffers an illness or a disability and needs constant medical attention, the original maintenance amount may be increase to meet the needs. You may apply to the Court for vary the maintenance.

If maintenance is ordered but not paid, the Court has power to impose a fine or even a jail sentence on the defaulter; the Court also has power to order that the maintenance be paid by the employer from the defaulter’s salary

Family Violence

Family violence includes causing hurt, putting in fear of hurt, wrongful confinement or restraint and continual harassment resulting in anguish to a family member. “Family member” is defined widely as your spouse, children, parents, in-laws, siblings even a relative.

The law provides that the Court may, upon satisfaction on a balance of probabilities that family violence has been committed or is likely to be committed and that it is necessary for the protection of the family member, make a protection order restraining the violence.

A protection order may be obtained by lodging a complaint in the Family Court, after which the Court may arrange for counseling for the parties involved before fixing the matter for hearing if the violence is disputed.

If a spouse breaches the protection order, it is considered a criminal offence and the offender will be fined or jailed. Upon breach, a police report should be made or a complaint lodged at the Family Court and the police will investigate the matter. It would be helpful if there is a medical report documenting the injuries suffered in such cases.

The above is but a brief write-up on the areas of the law concerned; it is advisable that you consult lawyers who will be able to render you detailed advice.