Custody,Maintenance & Matrimonial Assets (Civil)

During  a Divorce, there are several important issues that you need to know:

Custody

Custody is the right to look after a child’s welfare and physically take care of its concerns. Children below seven (7) years old are presumed to be better off with their mother, unless she is proven to be unfit. The older children’s wishes may be considered if the court feels they are mature enough to understand the implications of their decision.

When looking into the well-being of your children, the Court may consider:

  1. Your children’s preference to stay with either parent (if they are above seven years old);
  2. Not disturbing the daily routine of your children;
  3. The Welfare Report, if any prepared by the Social Welfare Department Office after conducting the interview with you and your husband and your children;
  4. The closeness of your children to their extended family and grandparents, uncles, aunts, and cousins living with you and your children now, babysitting and/or schooling arrangements.
  5. Religion.

If you gain custody of your children you will have to allow your husband reasonable access to them, and vice versa. Alternatively you and your husband may opt to make fixed arrangements or have joint custody.

Guardianship

Guardianship means the legal rights over your children. You and your husband have equal guardianship rights. This means either one of you can apply for the identity cards, passports, and schools for children.

NOTE: Children above 18 years old are considered adults.

Maintenance

This is a monetary support you and your children may get from your husband. You can apply for maintenance before your divorce has been finalized.

Maintenance for Wife

Maintenance Prior to Divorce
  1. You can make an application for maintenance to the Court once your Husband has failed to provide money for your children’s education or for you to buy, for example, food and clothing for your family’s needs, even if you have not yet decided to divorce your husband.
  2. The amount of maintenance ordered will be in proportion to the means of your husband.
  3. It can be made payable from the date he neglected to support you and your children financially.
  4. If your husband is an employee, you may apply to have the amount of maintenance deducted from his salary. His employers will then send the said amount to you directly.
  5. Even if your children are illegitimate (i.e your marriage is not valid), they will be entitled to maintenance from their father – but you will not.

Note: At the time of your divorce, if your husband is physical or mentally incapacitated and cannot earn living, you may have to pay him maintenance

Maintenance upon Divorce

(a) In deciding the amount of maintenance to be ordered, the Court will consider the future and present income, property resources, and earning capacity of both parties. The financial needs and degree of responsibility which the Court apportions to each party for the breakdown of marriage will be the deciding factors for the maintenance.
(b) The Court may also order the person liable to pay maintenance to provide security to guarantee payment of such maintenance.
(c) An order for maintenance shall cease to expire if the divorced spouse in whose favour the order was made remarries or lives in adultery with any other person.

Maintenance for Children

Children from this marriage can also apply for maintenance. These are factors will be considered:

  1. Financial needs of the child;
  2. Income, earning capacity, property, and other financial resources of the parent;
  3. Standard of living enjoyed by the family before the breakdown of the marriage;
  4. Any physical or mental disability of the child;
  5. Manner in which he/she was being educated and trained.

Currently the order for maintenance expires when the child attains eighteen (18) years of age.

Failure to Pay Maintenance to Wife and Children

Where a husband fails to comply with the court order for maintenance, the court may levy a fine or sentence the husband to imprisonment for a maximum term of one month for each month’s allowance that remains unpaid.

Variation of Maintenance

The Court may, at any time and from time to time, vary or rescind any order for maintenance upon application by either party where it is not reasonable or satisfactory because that the order was based on misrepresentation, mistake of fact, or where there has been any material change, for example, the earning capacity, health condition, or remarriage of either party.

Matrimonial Assets

Matrimonial assets are assets both parties acquire during marriage. In this situation the Court will normally order a sale of the property and divide the proceeds of the sale between the parties. The Court will also take into consideration the following when making the order:

  1. How much you and your husband contributed in money terms to obtain assets – your role as a housewife will also be taken into consideration as a financial contribution.
  2. Any loan borrowed by either of you for the benefit of the family is also considered.

Where the asset is acquired by the sole effort of one party only, the Court shall consider the following facts in dividing assets:

  1. The extent of contribution made by the other party who did not acquire the property, to the welfare of the family e.g. keeping the house clean, cooking, and generally looking after and caring for the family; and
  2. The needs of the minor children, if any, of the marriage.