Maintenance

• Author: Fara Brown
• Profession: Attorney-at-law practising in Jamaica for over 30 years
• Pages: 118-175

4. Maintenance

1. INTRODUCTION

•History and General Overview

2. THE MAINTENANCE ACT 2005

3. SPOUSAL MAINTENANCE

4. CHILD MAINTENANCE

5. MAINTENANCE OF PARENTS AND GRANDPARENTS

6. MAINTENANCE AGREEMENTS

7. MAINTENANCE UNDER OTHER ACTS

8. PRACTICE AND PROCEDURAL ASPECTS OF MAINTENANCE

9. THE WAY FORWARD

INTRODUCTION

Maisie lived in the country with her four children: Junior whose

real name is Claude, named after his father; Susie, Dave, and

the baby, Benjie. Their father lives on the other side of the

district. He has a small piece of land, but spends more time

in the bar than in farming it. He has a visiting relationship with

Pansy, which is why Maisie put him out two years ago. Life is hard

for Maisie; she had a ‘days work’ with Mrs Johnson for nearly

a year, but the woman’s husband was becoming a bit familiar

when he dropped her at the bus stop, so she decided to leave

before she got into trouble. For the last four months she has

been out of work and when she went to the children’s father for

help, he told her that ‘is only if she spend the night she can get

a little something to go home with’. The big children have not

been to school for the last two weeks because she does not

have bus fare or lunch money for them, and Benjie has a bad

rash on his legs. In desperation, Maisie dresses the children and

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sends them off to their father for money. She notes that Junior

is getting tall as he strides off wearing the ‘name brand’ hand-

me-down sneakers that Mrs Johnson’s son had outgrown. Two

hours later, the children return, Susie and Dave are squabbling,

Benjie is irritable and crying, and Junior asks for dinner. Maisie

enquires of Junior if his father has sent anything, and in doing

so notices that Junior is leaning against the wall in his bare

feet. Before she can ask, Junior says, “Daddy say ‘im neva have

a shoes look good so, and since we is de same size, it will serve

him betta”.

Felicia is ambitious and has a good job. She also has high

hopes for her son Joel. She is determined that, unlike his

father Marlon from whom she separated three years ago, Joel

will full his potential and become a successful professional.

Felicia and Marlon left school with a couple of CXCs between

them, but unlike Marlon who was comfortable having learnt a

trade, Felicia wanted more. As soon as she said she wanted

to go back to school, Marlon got her pregnant. That didn’t

stop her though and she simply left Joel with her mother and

carried on studying in the evenings after work. When Felicia

got into university, Marlon tried to get her pregnant again, but

Felicia was not about to be caught twice. Things went downhill

from there, and when Marlon started going to the university

campus and then accused her of cheating on him with one

of her classmates, she knew it was over. Felicia and Joel now

live in a rented apartment, and she has plans to buy her rst

house soon. She is dating someone who she studied with at

university. Joel is in second form at a good high school and is

doing well. When they broke up Felicia went to court and got

an order for Marlon to maintain Joel, which he does. Regarding

educational expenses, Marlon is supposed to buy Joel’s school

books while Felicia pays for his uniform. Three weeks into the

new school year, Felicia gets a call from one of Joel’s teachers.

He says that Joel is doing well at school, but it is a shame that

he has to be sharing his friends textbooks because he does not

have any of his own.

Family Law in Jamaica

120

HISTORY AND GENERAL OVERVIEW

Maintenance within the family, particularly child maintenance, has

always been a vexed question. Historically, there were two separate

legal routes by which a woman could obtain maintenance for her

children.

In the rst place, society was concerned with women who did

not have the so-called protection of coverture (marriage) and any

children they might have, because unless the man who fathered

those children could be brought to account, they would have to

be supported out of the public purse. Maintenance laws generally

were, and still are, concerned with creating a duty to support

children and other members of the family. Initially, ‘illegitimacy’ and

‘bastardy’ had different legal meanings, the former being a child of

unmarried parents who were living together, and the latter being the

child of unmarried parents who did not live together. Since neither

scenario, falls within marriage, and with the passage of successive

laws, the signicance of such a distinction has become negligible.

Bastardy laws, as distinct from maintenance laws, gave a woman a

way to establish, through the courts, a man’s afliation to her child,

as a prelude to being granted maintenance for that child. It can

be seen, therefore, that maintenance and bastardy were for a long

time, closely linked.

The Maintenance Law of 1869, created an obligation on both

parents to support their ‘illegitimate’ children. This notion of a

responsibility that rested on both parents was quite different from

the situation where the parents were married. There were successive

amendments to the early maintenance laws between 1869 and

1882, and these generally took a highly punitive approach to the

failure to maintain. The seeds of a bastardy law were also found

in this legislation, but it was not until 1881 that the matter was

specically addressed,1 as the legislature was reluctant to resolve

certain inherent inconsistencies between life and law in a post-

slavery society.

1. Bastardy Law 1881 is followed by the Bastardy Law Amendment Act 1882.