By Babayemi Olaniyan Esq
Introduction
Maintenance is a form of financial support awarded to a spouse in matrimonial disputes. It is often one of the most contentious issues in divorce, particularly where one party is financially disadvantaged and faces the risk of being left without adequate means of survival. In Nigeria, statutory marriages are regulated by the Matrimonial Causes Act 1970 (MCA) and the Matrimonial Causes Rules 1983 (MCR). These laws empower the court to order maintenance not only to a spouse but also for the benefit of the children of the marriage.
Importantly, such financial support does not have to wait until the divorce is finalised. The court may grant what is known as interim maintenance (maintenance pendente lite)to ensure that the economically weaker spouse is not left destitute pending the determination of the suit. This article examines the legal framework, procedure, and common challenges in securing maintenance before final judgment in divorce proceedings.
Legal Basis for Interim Maintenance
Under Section 70 of the Matrimonial Causes Act, the court has the power to order maintenance of a party to a marriage or of the children of the marriage either in the final judgment or during the pendency of proceedings. The court may order maintenance in the form of periodic payments (e.g., monthly allowances) or a lump sum.
consider the following factors:
1. The lifestyles of the parties.
2. The financial means of the parties.
3. The conduct of the parties.
4. The existence or non-existence of a child/children of the marriage.[2]
The courts have also emphasized that the conduct of either spouse can influence the maintenance order. The guiding principles include:
1. If the wife’s conduct borders on serious depravity, this may result in the reduction or even total elimination of proper maintenance.
2. If the conduct of the husband is immoral, unfaithful, or otherwise objectionable, the wife must be given full maintenance but must not be enriched by the reason of that condemnable conduct.
3. Maintenance should not be awarded as a form of punitive damages against the husband on the grounds of depravity.
4. Where the immoral conduct of the husband or his marital behaviour has adversely affected the financial status or the standard of living of the parties, this may justify a maintenance award. 5. Where the petitioner has been found guilty of misconduct, evidence may still be presented to persuade the court to take a more lenient view.
Procedure for Applying for Interim Maintenance
An application for maintenance pendente lite (interim maintenance) is typically brought by Motion on Notice, supported by an affidavit detailing the applicant’s financial needs and the Respondent’s capacity to pay.
In urgent situations, where delay could cause hardship, the application may be brought by Motion Ex Parte, allowing the Court to exercise its discretion to grant temporary relief pending the conclusion of the trial.
Under the Matrimonial Causes Rules, Form 45 is the prescribed form for seeking interim maintenance.
Practical Steps to Secure Interim Maintenance
1. Filing the Application.
Prepare and file a motion citing Section 70 of the MCA and the relevant provisions on maintenance in the Matrimonial Causes rules. The reliefs sought should be clearly and specifically stated.
2. Providing Supporting Evidence.
The supporting affidavit should detail the applicant’s living expenses, income, liabilities, and the needs of any children. Wherever possible, attach documentary proof such as receipts, school fees invoices, medical bills, or bank statements.
3. Establishing Urgency and Need.
Clearly demonstrate that without interim maintenance, the applicant will suffer undue hardship or be unable to meet essential living expenses.
4. Service and Hearing.
Where the application is brought by motion on notice, the applicant must ensure proper service of the motion on the respondent. The matter will then proceed to hearing, at which the court will determine the merits of the application.
Challenges to Securing Interim Maintenance. While interim maintenance is a vital safeguard, two significant challenges often arise:
1. Delay in Hearing Applications.
Court congestion may cause delays, undermining the urgency of interim relief.
2. Non-compliance with Orders.
Even after an order is granted, a defaulting spouse may fail to comply. Consequently, enforcement may require additional steps such as garnishee proceedings (directing the bank to deduct payments) and committal for contempt (seeking imprisonment of the defaulting spouse). These steps, while effective, can prolong the relief process.
Conclusion
Maintenance before the final judgment plays a critical role in safeguarding the welfare of spouses and children during the pendency of divorce proceedings. By applying promptly, presenting strong financial evidence, and relying on statutory provisions (Section 70 of the MCA and the MCR) and case law, applicants improve their chances of securing much-needed support. Practitioners must approach such applications proactively to ensure that vulnerable parties are not left without support before the final judgment. It should be noted that both genders are entitled to apply for maintenance.
Although challenges such as delays and enforcement hurdles may arise, interim maintenance remains a powerful tool to prevent hardship during the pendency of divorce proceedings.
Babayemi Olaniyan is the Lead Partner of Lehi Attorneys and a family law expert with years of expertise in resolving family law matters.
Contact Email: yemiolaniyan00@gmail.com, www.lehiattorneys.com
Caveat! The content of this article is for educational purposes and is intended to provide a general understanding of the topic discussed. It is not intended to serve as legal advice whatsoever. If the contents appeal to you and you would want further clarification on any of the points raised therein, do not hesitate to send an email.
[1] Odusote v. Odusote (2012) 3 NWLR (Pt. 1288) 478 at 509, paras D-E
[2] Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 151
Source: Thenigerialawyer
