Maintenance is a legal notion which addresses financial disparities between spouses in order to maintain a standard of living similar to that enjoyed during the marriage after separation. Therefore, the non-earning or lesser earning spouse would be provided financial support from the other spouse. Nonetheless, this is not the only form of maintenance as there is also maintenance which is owed to the child. Maintenance owed to children shall be addressed in Part 2 of this two-part article series on maintenance.
Maintenance is not narrowly defined in our law since the law provides that maintenance shall include, and therefore not be limited to:
Therefore, these are the four basic elements which every maintenance should provide. Nonetheless, when quantifying maintenance, due regard shall be given to the proportionate claim of the spouse and the means of the spouse supplying maintenance. When considering a claim for spousal maintenance, regard shall be given to whether the requesting spouse is able to provide for his own maintenance and whether he is able to exercise a profession, act, or trade to supply his own maintenance.
When considering whether the requesting spouse is able to supply his own maintenance through possessing the ability to work, consideration is to be given to whether such ability was diminished. This is because ability does not simply refer to whether a person is physically able to work but also the attractiveness of that person in the employment market. Therefore, a spouse whose role in the marriage was to take care of the household and the children, if any, may find it difficult to re-integrate into the employment market; and the law provides for such an instance.
When assessing the means of the providing spouse, earnings derived from the following are considered:
On the other hand, when determining the need for the provision of maintenance to the requesting spouse, due regard shall be given to the value of movables and immovables possessed by the spouse.
The law also provides clemency to the supplying spouse in regard to difficulties he would face. If the supplying spouse becomes unable to supply the maintenance in whole or in part, he may demand to be released from this obligation or reduce the burden. This is done without prejudice to the supplying spouse's future rights; therefore, the requesting spouse cannot demand the exempt maintenance once the supplying spouse avails himself from his financial difficulties.
In the case Police vs. Saliba[1], the Court stated that in the event that the person supplying maintenance becomes unemployed, the remedy shall not be to stop the provision of the maintenance. Rather, the remedy shall be to immediately demand the Court to reduce or remove the burden of maintenance. Therefore, we see how such issue mandates that such matters are to be decided by the Court.
On the other hand, a supervening change in the means of the requesting spouse may also affect the maintenance in whole or in part. This is because, on demand of the supplying spouse, the Court shall be able to adjust or stop the supply of maintenance due to such supervening change.
Maintenance is payable in two methods. Firstly, and most commonly is by installments which would normally accrue monthly. The Court may also determine that the payment of a lump sum is sufficient to facilitate the financial independence of the requesting spouse. In such instances the supplying spouse may restrict the use of the lump sum to:
Through the use of such security, the notion of maintenance is put to force in the correct form without the possibility of deviation, to ensure financial independence. In lieu of the lump sum, the supplying spouse may also be granted maintenance through the assigning of property in ownership, usufruct, use, or habitation.
Upon the payment of maintenance, no action shall lie for the repayment of such maintenance. Even if the reason for the provision of maintenance subsists, no action shall lie.
When separation proceedings are ensued, the Court shall be able to determine the value of maintenance pendente lite; this is a financial safeguard towards the requesting spouse during the course of proceedings.
In efforts to reduce contact between spouses when the relationship has become acrimonious or even for efficiency purposes, the Court may, by virtue of a decree or judgement, order that maintenance is paid directly from the salary, allowance, or bequest of the supplying spouse.
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[1] Il-Pulizija vs. Anthony Saliba, Court of Appeal, 15 ta’ Lulju 1998.