Spousal Support

Spousal Support Laws in Jamaica W.I.

Did you know that the ability to support yourself has been a huge concern for those who are going and has gone through a divorce? Income is not limitless, and supporting two households (utilities, rent, mortgage, food etc.) on a couple’s existing income stream can become a huge challenge.

When one spouse is considering divorce, one of their first questions usually revolves around the how much money will they be required to pay (if they are the higher wage-earner in the relationship). On the other other hand they usually ask how much alimony will they be entitled to receive (if they are the lower income earner in the relationship). Spousal support, maintenance, and alimony is basically the same thing which is one spouse paying support to the other spouse, while the divorce is being finalized, and then post-divorce after the decree absolute has been granted.

Did you know that alimony originates from English common law?

Under that old system, women gave up their personal property rights upon getting married. Their husband held the title and retained the right to his wife’s property, but in exchange had a responsibility to support the wife even if the marriage is dissolved.  The laws have changed concerning the issue of property rights, women have become liberated, educated and have gained greater opportunities in the workplace, to the extent that two-income families have become the norm, along with shared parenting.

One of the most common myths in Jamaica and also in other parts of the world is the notion that a divorced woman is automatically entitled to receive some form of spousal support, maintenance, alimony from her former husband. This idea is perhaps most frequently thought of in cases where the couple has been married for a long time, but it is simply not true.

The amendment of the Jamaica Maintenance Act in 2005, states that, marriage is of equal partnership. The old patriarchal law provided that a husband was obligated to maintain his wife whether or not she could maintain herself; and this therefore meant that men had no right to seek spousal support. Under the new law, which attempted to balance the interests of both men and women, provides for either the husband or the wife to seek maintenance from the other. 

Please note that there is no automatic right for either the husband or the wife to receive a payment..

The Maintenance Act of Jamaica

Section 4 of the Maintenance Act sets the stage for applications for spousal maintenance, and other sections of the act provides guidance as to the relevant factors that a court must consider:
The husband and wife have an obligation, so far as they are capable, to maintain the other spouse to the extent that such maintenance is necessary to meet their reasonable needs, where the other spouse cannot practicably meet the whole or any part of those needs having regard to –

(a) the circumstances specified in Section 14(4); and
(b) any other circumstance which the justice of the case requires to be taken into account.

The right to spousal maintenance came squarely into focus in the case of Gentles v Gentles [2018] JMSC Civ. 36. After reviewing the relevant sections of the act, the learned judge endorsed the following explanation of the law by Justice Brown in Robb v Robb Claim No. D01148/2005 (judgment delivered on December 11, 2009):

The obligation to maintain the other spouse is, in the first instance, is latent. It is activated by the inability of the other spouse to maintain themselves. So, the court has to make, as a condition precedent to a maintenance order, a threshold finding that the dependent spouse cannot practicably meet the whole or part of his or her reasonable needs.

In the Gentles case, after a 12-year marriage came to an end, the former wife made an application for maintenance. The claim failed because the court accepted that the claimant had sufficient income to meet her reasonable needs. After reviewing the evidence, the judge made the following findings:
– The claimant is already currently able to contribute to her monthly living expenses;
– There is no evidence that the claimant has had to redirect funds to meet her basic needs and/or those of her household; and
– This demonstrates the claimant’s capacity to be financially independent of the defendant at this present time as she has been able to continue to meet her financial obligations even in the absence of the defendant’s financial support.

When making spousal maintenance applications in Jamaica West Indies, applicants whether male or female should be mindful of the fact that not only can their applications be rejected, they might even be ordered by the court to pay maintenance to their former spouses.