Dear Mrs Macaulay,
I was wondering if a husband who has been separated from his wife for 18 months could apply for maintenance and custody of his children. I note that the Act says within 12 months. Is it too late? Or will he now have to apply for a dissolution of marriage?
A husband who has been separated from his wife for 18 months could certainly apply for maintenance and custody of his children. I understand that the maintenance application will be for the children and not spousal maintenance, though that could also be done.
If he is going to apply for maintenance for his children, he would also have to apply for and obtain an order for their “care and control”. This means that the children would live with him and he would be responsible for their day-to-day care, and that the mother would then be entitled to periodic access, either for some hours of a weekend day or alternative weekends. Or she may be granted residential access over alternative weekends, shared school holidays, and on other special days, unless this would be contrary to the best interests of the children.
As to the issue of custody, unless it would be adverse to the children's best interests or the other parent is completely incompetent or unfit, joint custody is the preferred order, but sole custody to one parent could be ordered.
In conclusion on this point, if the father has the care and control of the children, then he can apply for and obtain an order for his wife to contribute to their maintenance, and such contribution would be dependent on their needs and her means.
The provision in the Act you mention of “within 12 months” is in the Matrimonial Causes Act, and this refers to when a petition for the dissolution of marriage (divorce) can be filed after the separation of the parties. This provision is, in fact, that they have “separated and have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing of the petition for dissolution of the marriage”. The 12-month separation provision does not relate to maintenance applications. The husband can therefore apply for custody, care and control and for maintenance if the children live with him.
I must, however, repeat this statement, which I have made on many occasions: Any person can apply for any orders they wish, as long as they are not for immoral purposes or against public interest, or are so without merit as to be frivolous, vexatious and/or an abuse of the process of the court. In other words, he can apply, but there is no guarantee that he will succeed. To succeed he must have sufficient evidence to convince the court that it is in the best interests of the children for the orders sought to be made in his favour.
He can, of course, file a petition for the dissolution of his marriage, as he has achieved the qualifying period of 12-plus months of separation. In his petition, he can in the relief section ask for the dissolution of his marriage, and next ask for custody, care and control of his children, and then for contribution towards their maintenance.
In the course of the divorce proceedings, he can and should apply by way of Notice of Application for Court Orders, and there pursue his applications for custody, care and control and maintenance.
It should be noted that he will not be granted a decree absolute if the court is not satisfied that the arrangements for the care of and provision for the children are reasonable and acceptable and in their best interests, or are the best that can be arranged in the circumstances of the case.
Good luck to the husband and father, and I hope that the outcome will be in the children's best interests.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.