The objective of this brief article is to simply and concisely provide an overview of the factors a Court will consider when determining the issue of the sum to be paid as maintenance for a child of a marriage. It examines the financial side of marriage when the marital relationship breaks down and the obligations of both parties to provide for the care and wellbeing of the child.
For clarity, maintenance is defined by the Family Law Act of Barbados as the provision of money, property and services and includes, in respect of a child, provision for the child’s education and training.
Within a marriage, the parties usually jointly decide the division of finances, namely which party will be responsible for specific expenses. This is usually based on the parties’ income, interests and practical considerations. The maintenance of the children may be shared equally or may be the responsibility of one party while the other is responsible for other expenses. It is expected that the maintenance of the child will not be a scientific exercise inclusive of detailed record keeping but rather based on the realities of life with contributions from both parties.
For instance, the party with the greater income may be responsible for a greater share of the expenses; or the party responsible for the management of the home may be responsible for purchasing food, household supplies and home maintenance while the other party is responsible for mortgage payments and utilities. There is usually a significant degree of flexibility. An emergency or unexpected events may require one party to assist the other and the pooling of resources is customary. Each marriage will have its own circumstances which guide how marital expenses are shared.
Where the marital relationship breaks down, particularly where the parties live apart and the child of the marriage lives with one parent, called the primary carer or custodial parent, the non-custodial parent must contribute to the maintenance of the child. A frequent query is what sum should the non-custodial parent contribute towards the maintenance for the child of the marriage? The answer will not be found in a comparative analysis of friends and colleagues.
A prevalent and misleading practice is to survey those persons in an effort to determine a “market value” for maintenance. If a parent knows of other persons who receive certain sums as maintenance for a child, the prevalent thinking of that parent tends to be that they too should receive a similar sum for the benefit of their child.
In most instances, the persons selected for comparative purposes have significantly different circumstances and those circumstances drive the Court’s decisions on issues of maintenance. The Family Law Act of Barbados provides a number of factors a Court must consider and some of them will be highlighted.
Firstly, the financial needs of the child is a factor to be considered. An infant may not have the same financial needs as a 17-year-old preparing for college. A healthy toddler is unlikely to have the same needs as an eleven-year-old entering secondary school. A child with an illness may have expensive dietary requirements, require renovations to the home to facilitate mobility and a specially designed vehicle for transportation. The Court would therefore carefully consider the specific financial needs of the child.
Secondly, the manner in which the child is being, and in which the parties to the marriage or union expected the child to be, educated or trained. The Court may consider the traditions within the family and the manner in which the child and/or siblings were educated or trained before the breakdown of the relationship. This is particularly relevant where issues of the type of school, whether public, private, religious, sectarian or liberal, cannot be decided between the parties and the Court must determine the issue.
Thirdly, the income, property and financial resources of each of the parties and their physical and mental capacity for appropriate gainful employment. Each party must contribute to the child’s maintenance. Even though the sum is paid by the noncustodial parent to the custodial parent for the benefit of the child, the custodial parent is also expected to contribute.
Having considered the needs of the child as discussed above, the Court may then consider the resources of the parties to meet those needs. The sum decided by the Court will reflect the ability of the noncustodial parent to pay the sum, usually on a weekly or monthly basis.
Where the custodial parent has significant resources which vastly exceed the noncustodial parent, this may influence the Court to set the sum lower as opposed to where the custodial parent who must provide food, clothing, shelter and provide for the daily living needs of the child earns meager wages and has no assets while the noncustodial parent has significant income, property and financial resources.
Thus far, factors under section 54 of the Act have been discussed and the Court will also consider relevant factors under section 53(2), one of which is discussed below.
Fourthly, the financial needs and obligations of the parties. While one’s income, property and financial resources are important considerations, the Court will also examine the parties’ financial obligations. This is particularly relevant when both parties have similar financial resources but one may have onerous financial obligations. For example, a party may be required to contribute to the care of elderly parents, pay student loans for one’s own past education, finance a current programme of tertiary education or professional training or finance other debt obligations such as a mortgage.
While there are other factors, the four identified are extremely common and form a large part of deliberations between Attorneys-at-Law and clients. It must be noted that an order for maintenance for a child will usually require the noncustodial parent to also contribute towards half of the child’s reasonably incurred expenses.
Another common query is what is the difference between maintenance and expenses? Maintenance is usually applied to the day-to-day needs of the child such as food, clothing and shelter. The categories of expenses are usually expressly stated within the Court order and often include educational, medical, pharmaceutical, dental and ophthalmic expenses. Therefore, the cost of textbooks and uniforms for school would be shared equally between the parties as educational expenses. The same obtains for consultations with a physician and tests for the child and these fall within the category of medical expenses.
There are no mathematical formulae or equations and certainly no “market value” or threshold to determine the sum a Court may order to be paid as maintenance. The issue of child maintenance is complicated by the specific circumstances of the parties, their competing needs, resources and obligations, and the overarching objective of ensuring that the child is adequately provided for. The facts of each case are therefore crucial and the parties themselves should attempt to reach an amicable agreement on the sum to be paid, the frequency and method of payment.
This area of law is also concerned with maintenance for children of a marriage over the age of eighteen years who are pursuing a programme of training or tertiary education, children with disabilities and obtaining maintenance from a deceased parent’s estate, all of which are beyond the purview of this article.
Deborah N. Carrington is an attorney-at-Law
Queries or comments on this article can be sent to [email protected]