| Divorce
(Non-Muslims)
Maintenance (Non-Muslims)
The LRA covers the maintenance of the wife or former wife
and also the husband or former husband. Under section 77,
the court may order a man to pay maintenance to his wife or
former wife under three circumstances:
| (a) |
during
the course of any matrimonial proceedings; |
| (b) |
when
granting or subsequent to the grant of a decree of divorce
or judicial separation; |
| (c) |
if,
after the decree declaring her presumed to be dead, she
is found to be alive. |
The
court is granted the corresponding power, under section 77(2)
LRA, to order a woman to pay maintenance to her husband or
former husband where he is incapacitated, wholly or partially,
from earning a livelihood by reason of mental or physical
injury, or ill-health.
When determining
the amount of any maintenance to be paid, section 78 LRA provides
that the court shall base its assessment primarily on the
means and needs of the parties, regardless of the proportion
such maintenance bears to the income of the husband or wife,
as the case may be, but shall have regard to the degree of
responsibility which the court apportions to each party for
the breakdown of the marriage.
The court
has the power to order security for maintenance under section
79 LRA. Under section 82(2) LRA, this right to receive maintenance
from the former spouse shall cease on remarriage or living
in adultery with any other person unless the agreement otherwise
provides.
The parties
to a marriage may enter into an agreement for the payment,
in money or other property, of a capital sum in settlement
of all future claims to maintenance (section 80 LRA). The
agreement, however, will not be effective until it has been
approved, or approved subject to conditions, by the court.
When it is approved, it shall be a good defence to any claim
of maintenance. The court may also vary orders for maintenance
under section 83 LRA. In the case of secured maintenance,
the legal personal representatives of the person against whom
the order was made may make such application to vary or rescind
any such maintenance order.
Arrears
of unsecured maintenance, is recoverable as a debt from the
defaulter under section 86(1) LRA. The suit must be filed
within three years of the accrued maintenance (section 86(3)
LRA).
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