Part VII of the Matrimonial Causes Act (Chapter 282) is headed Maintenance, Custody and Settlements. Section 73 deals with money.
In this Part, “marriage” includes a purported marriage that is void.
So the Part VII powers are available even where the marriage was void from the beginning — a person who obtains a decree of nullity of a void marriage is not shut out of maintenance, custody or property orders.
Section 73(1) — the general power
In proceedings with respect to the maintenance of a party to a marriage or of children of the marriage (other than interim maintenance), the Court may make such order as it thinks proper, having regard to —
- the means of the parties;
- their earning capacity;
- their conduct; and
- all other relevant circumstances.
Means is what a party actually has — income, savings, land, business interests.
Earning capacity is what a party could earn. A spouse who gives up work to avoid paying, or who has never worked but is able-bodied and qualified, is assessed on capacity, not on the figure they choose to present.
Conduct is expressly relevant — unusual in modern family law, but this Act retains the fault framework throughout. The ground on which the marriage ended may therefore bear on the money.
All other relevant circumstances is open-ended: the length of the marriage, the ages and health of the parties, who has the children, contributions to the household, and obligations to other dependants.
Section 73(2) — maintenance pending the proceedings
Subject to this section and to the Rules, in proceedings for maintenance pending the disposal of proceedings, the Court may make such order as it thinks proper, having regard to the same four factors.
A divorce takes months. A decree nisi then takes at least a further three months to become absolute. A spouse with no income cannot wait.
Section 73(2) allows an order at the outset. Combined with section 76(1)(h) — which expressly permits an order pending the disposal of proceedings — interim maintenance is a standard early application.
Because section 56(3) requires ancillary claims to be included in the petition, a maintenance claim should be pleaded from the start.
Section 73(3) — a decree against you is not a bar
The Court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the maintenance proceedings are related.
Under the older law a wife found guilty of adultery generally forfeited maintenance. Section 73(3) removes that automatic consequence.
A respondent against whom a decree is made on the ground of adultery, desertion or cruelty may still be awarded maintenance.
Conduct remains a factor under subsection (1) — but it is one factor among four, not a disqualification. The court weighs it against means, earning capacity and everything else.
Section 73(4) — the age limit
The power to order maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of 21 years unless the Court is of opinion that there are special circumstances that justify it.
| Age of child | Position under section 73 |
|---|---|
| Under 21 | Ordinary power — order as the Court thinks proper |
| 21 or over | Only where the Court finds special circumstances |
Continuing tertiary study, or a disability or chronic illness that prevents self-support, are the usual examples. The same limit and the same exception appear in section 75(3) for property settlements.
“Children of the marriage” is defined widely in section 2 — it includes children adopted since the marriage, children of both parties born before the marriage, and a child of either party who was ordinarily a member of the household. See section 59.
Maintenance outside the Matrimonial Causes Act
Section 4 provides that the Act does not apply to or in relation to a customary marriage. A party to a customary marriage cannot use section 73 at all.
The alternatives are:
- Child maintenance in the Family Court under the Lukautim Pikinini Act 2015 — see how to get a maintenance order and who must maintain a child;
- the Maintenance Orders Enforcement Act (Chapter 279) for enforcement across jurisdictions;
- the affiliation provisions where paternity is in issue.
On enforcement, see sections 86 to 88 and the attachment of earnings scheme in Schedule 2. On variation, see section 76(1)(j) and (2) — an order may be increased or decreased only where circumstances have changed to a sufficient extent, or where material facts were withheld or false evidence given.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 2, 4, 56, 59, 72–78, 86–89
- Lukautim Pikinini Act 2015
- Maintenance Orders Enforcement Act (Chapter 279)
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.