What is maintenance?
Maintenance is help, almost always in the form of money, that is paid towards the cost of looking after yourself and bringing up any children you have. This is paid by your husband if you are legally married and have separated. The money is to help with your living expenses including rent, food and clothing for you and the children. You can ask for maintenance just for the children only, or for yourself as well.
Who can apply for maintenance?
Every woman, whether she is married or not, can apply to the court for an order that the father of her children pay maintenance for the children. If you are married you can also ask for maintenance for yourself.
If your husband is not paying maintenance you can apply to the court for an order to be made. You can also apply if your husband is paying some maintenance, but it is not enough, or is not paid regularly. The order will say how much he must pay and when it must be paid.
Which children can you claim maintenance for?
All legitimate children (this means children whose father is your husband, and any legally adopted children) who are under 18 years old are entitled to maintenance.
You can also apply for maintenance for your children if you are not married.
How do I apply to the Court?
If you want to divorce your husband, you can ask the court to deal with maintenance for you and the children at the same time. You will need to see a lawyer about divorce. You can get more information about getting a divorce in the pamphlets on "Divorce" and "Property and Maintenance".
If you are separated but do not want to divorce your husband and he has not given you any maintenance money, or not enough money, for a period of one month, then you must report him to the police if you want to get a court maintenance order. This means that you have to wait for one month before reporting him.
Because this case is brought by the police and public prosecutor you do not have to pay any court fees for your application to go to the court.
How do I report to the Police?
You will need to give a written statement to the police. They will usually ask to see a copy of your marriage certificate or your marriage registration document.
If you cannot find yours then you can get a copy from the Civil Status Office. They will charge you a small fee for this.
The police or a public prosecutor will bring your husband before the Court. The Court can then make an order for him to pay a set amount of maintenance to you at the end of every month.
You should make sure that you include in your written statement to the police how much maintenance you want to ask the court for.
The court may set a different figure but it is important that they know how much you think you need. You will not always have a chance to speak at your husband's court hearing, so the public prosecutor (the person who explains the case to the Magistrate) must be aware of what you want.
If possible it is a good idea to try to speak to the prosecutor before the court case and to be in court on the day the matter is heard.
How much maintenance can I get?
In deciding how much maintenance to order your husband to pay, the court will look at how much he earns and also how much you earn if you are working and earning money.
The court will also consider the needs of the children. You should be ready to show the Court details of your children's expenses, like food, school fees and transport costs.
If you are asking for maintenance for yourself as well as for the children the court will consider your behaviour and situation. It will not order that your husband pay maintenance for you if you are living with another man. It is also unlikely to order maintenance for you if you are working and earning an amount similar to your husband.
The court can order as much as it thinks is appropriate. However it is common for orders to be for between 5,000 - 10,000 vatu every month for each child. It may be between 10,000 and 20,000 vatu each month for a wife who is not working or earning money
The Court will not make an order if your husband cannot pay because of illness or an injury, if he is in prison, not working or if he cannot pay for some other reason. It is up to your husband to prove these things to the court. The amount order is based on what your husband earns.
If you think that your husband is faking an illness or is deliberately earning less than before you should try to prove this.
If your husband provides evidence that he is earning a smaller amount of money than you think he is, but is living the lifestyle of a richer man, the Court can use this to order a larger amount of maintenance. For example, if his wages slip shows that he is earning 50,000 vatu per month but his lifestyle shows that he must have access to twice that amount the court can order he pays an amount that is in line with his lifestyle.
Can I live in the matrimonial home?
If you rent the house with your husband you should go to see the landlord and ask that you and the children be allowed to stay in the house. If there is a lease ask the owner to put it in your name only.
If you and your husband own a house together or the house is only in your husband's name it is not easy to have him sent out of the house. If you are asking for a divorce the court will divide the property and decide who can live in the house.
If you are asking only for maintenance, who can stay in the house will depend on who legally owns it.
You can ask the Magistrate to make an order
about who can live in the house as part of the maintenance order. If your husband earns very little he may agree that you can live in the house so that he can pay less maintenance.
Your case for maintenance will be put to the court by a Public Prosecutor. You should talk to the Prosecutor before the case goes to court if you want to make this type of application.
If your husband refuses to accept this type of arrangement and the Magistrate will not make an order you will need to see a lawyer. They will help you to make a separate application for the right to remain in the matrimonial home.
How do I receive my maintenance payments?
It is a good idea to have a bank account so that the maintenance can be paid into it. This way you do not have to see your husband if you don't want to and you will also have a written record of each payment.
You should open the account and give the details of the account to the prosecutor, so that the Magistrate can give the details to your husband at the court hearing.
If this is not possible you should try to keep a record of the payments and the dates they were made. This will be helpful if he stops paying and you have to go back to court to try to enforce the maintenance order.
What if he doesn't pay?
If your husband still does not pay maintenance after the court has made an order, or if he stops What if he doesn't pay? paying, you will need to go back to the court to get help to enforce the order.
It is best not to let the amount owing (called the arrears) get too big before you go back to the court. A very large amount will be harder to recover.
There are two ways of making him pay what he owes. You can:
ask the police to bring your husband back to court again, or
get a lawyer to bring a civil court action against him.
Reporting to the police again
If you report your husband to the police again they can bring him back before the court for "contempt of court". Contempt of court means that a person has not done what they were ordered to by the court and the court can punish people for this.
The Magistrate may order that the arrears which you are owed must be paid immediately or must be paid in small amounts at the end of each month.
As this court case is brought by the police and the prosecutor, you do not have to pay any court fees.
Sometimes the Magistrate does not make an order about the arrears (the maintenance that hasn't been paid). This is most likely if the amount is large and your husband has not paid for a long time.
This is because the Magistrate may not have all the evidence to support your claim for these arrears and because the prosecutor is often unwilling to deal with the arrears if they are large. The prosecutor is mostly concerned with the criminal matter of your husband failing to pay.
If this is the case you will need to see a lawyer about bringing a civil action.
A civil action
Your lawyer will prepare the court papers and tell you what day you are going to court. You will need to give evidence in court about your husband's failure to pay. This is when it is important to have a record of when he was supposed to pay you and how much.
The Court has the power to:
fine your husband;
make an order that your husband's employer pays the maintenance directly to you out of his wages, usually to your bank account (called a garnishee order);
order his possessions to be sold to pay you what he owes you
The Court will usually fine your husband the first time he is brought before the court for non-payment. The garnishee order is very useful if your husband is in a job which is likely to continue for some time.
Because you are bringing this action you will need to pay the court fees, which are 5,000 - 7,000 vatu.
If the Court finds that your husband has failed to pay the maintenance it will usually order that he pay back the court fees to you as well as paying the maintenance.
Before the Court hearing you should try to find out as much as you can about your husband's employment. If possible you should have the name and address of his employer and the amount of his weekly wages.
If he has any other forms of income, such as rent he collects, property he owns or savings he has then you should also tell the court about these.
This information will help the court if your husband claims he cannot afford to pay the maintenance.
When you give evidence in court you should try to think carefully about your answers and speak clearly and loudly.
These laws are taken from the Vanuatu Women's Centre brochures. The laws are basically the same in Fiji and other countries.