According to Blacks Law Dictionary ‘alimony’ is an allowance paid by one spouse to another by order of a court for the maintenance of the other spouse while they are separated, during divorce proceedings or after they are divorced.
Alimony comes from the Latin word ‘alimonia’ which means sustenance and derives from the common law right of a wife to material support by her husband. In other words it was essentially payable only to a wife. The courts have tried to draw a distinction between maintenance and alimony but this distinction would only apply in jurisdictions where both terms are retained.
The Nigerian Matrimonial Causes Act of 1990 does not mention ‘alimony’ and uses ‘maintenance’ to describe payment of an allowance to a spouse during or after a divorce. While the two words are sometimes used interchangeably by the Nigerian Courts it is recognized that they refer to the same thing. The legal principles governing assessment and determination of alimony also apply to assessment and determination of maintenance and the courts have so held in a number of cases.
Under Part IV of the MCA a court can make an order for maintenance for ‘a party to the marriage or of children of the marriage’ suggesting that a maintenance order could potentially be made in favor of the male spouse and a mother could be ordered to pay maintenance for children. It could be considered quite progressive that Nigerian matrimonial law has removed a common law distinction that reinforced women’s lower status.
Nevertheless when reference is made to maintenance orders the assumed beneficiaries are usually the wife and children of the marriage. It would be interesting to see what the courts would decide if a husband petitioned for maintenance from a wife in a divorce proceedings.
While the court has discretion in granting maintenance orders there are nevertheless clear principles for the assessment of maintenance. The court in will consider means and income of the parties, their financial obligations and responsibilities, their standard of living, the age of the parties, ability to work and any disability and the contributions of either party to house and family care.
These principles have been upheld by the Nigerian courts in a number of cases.
Maintenance will not normally be granted if the spouse claiming maintenance has sufficient means and income to maintain him or herself, so the petitioners or applicants earning capacity will be a relevant factor in determination. In a 1974 case the court held that the purpose of maintenance was to ensure that the wife in this instance was able to live approximately in the position to which she had been accustomed to before her petition for divorce was brought before the court. Maintenance like alimony is not supposed to be punitive.
Whether maintenance is permanent (that is till the death of either party) or temporary has been decided based on age, education, occupation etc. In one case where the wife was in her 60’s the court granted a generous award for the rest of her life based on the fact that she was already too old to work or be optimally productive. Maintenance orders have also been granted on a rehabilitatory basis that would support a spouse through a transitional period. Most maintenance orders terminate on the remarriage of the spouse granted the order since the presumption is the maintenance is no longer required.
I have of course been referring to spousal maintenance; children of a marriage are entitled to maintenance till they are 21 yrs old and the court makes separate orders for each type requested.
In addition to maintenance orders Nigerian courts also have discretionary powers to make orders for settlement of property of the parties to a marriage as the court considers being just and equitable. The Nigerian Court of Appeal has held that evidence of joint purchase or development was not a prima facie requirement in settlement of property and that the only limitation on the court was to consider what was just and equitable.
Women have applied and been granted settlements of matrimonial property by Nigerian courts and a creative lawyer can make a persuasive argument to the court and use a growing number of legal precedents to ensure a court uses its discretion wisely to protect the economic rights of men, women and children during divorce.