Features

Application for order for maintenance of children

A READER (M.W.) writes: I am living with a man for eight years and have two children for him; one is sixteen the other six. He moved out of the house and is hardly supporting the children. Now he only gives them something when he feels like. The sixteen-year-old is in high school and I am finding it hard to support them. I would like to take him to Family Court but I was told that since no order was made for the first child I cannot make one now (paraphrased).

In previous articles, Legal Eagle had examined the law relating to the legal duty imposed on men to maintain certain children whether such children are born in or out of wedlock. We have also managed to highlight some aspects of the legal process involved in obtaining and enforcing an order for child maintenance.

For M.W.'s sake, I will reiterate that the law imposes a duty on a father to maintain his children whether born in or out of wedlock. Where children are born out of wedlock, as I assume it is in the case of M.W's children, paternity (that the man is the father) will first have to be established before an order for maintenance of the child can be made. The court will have to first adjudge the man as putative father before his legal obligation to maintain the child arises.

Affiliation Act

An application for the maintenance of a child may be made either before the birth of the child or at any time within twelve months from the birth of the child. Where it is not made during such period, the application may be made at any time after the child attains one year old where it can be proved that the alleged father has, within twelve months of the child's birth, paid money for the child's maintenance or contributed to its support.

M.W. is saying that the man in question has been maintaining her children albeit in an unsatisfactory way. She would, therefore, be in a proper position to seek an order in an effort to make the payments more systematic and adequate. However, in relation to her sixteen-year-old it is in fact true that it is late for an application to be made in respect of her regardless of her need for assistance from the father.

The Affiliation Act provides that no order for the maintenance of any child shall be of any force or validity after the child in respect of whom it is made has attained the age of sixteen except for collecting money owed by the father under the order. This means that if an order is made before the child attains sixteen, then the order will cease to be of effect upon the child's sixteenth birthday. The only thing that can be done by the mother is to collect money in arrears under the order. It follows logically that where no order was made before the child attains sixteen, then none can be made again after the child reaches sixteen as it will be of no force and validity.

Child's maintenance

The Affiliation Act, of course, provides that at the time the judge is making the order he/she may direct that the payments to be made for the child's maintenance may continue until the child's eighteenth birthday. Once the judge makes the order at that time, the order will be in force until the child reaches eighteen. The position, as far as I understand it therefore, is that for a father to be ordered by the court to maintain his child the application for maintenance has to be made before the child reaches sixteen. It follows from this, that M.W. may go ahead and seek to obtain an affiliation order (on assumption the child is born out of wedlock) or a maintenance order (if born in wedlock) for the maintenance of her younger child. Regrettably, I know of no way that she can seek an order against the father for the maintenance of the sixteen year old in the circumstances of her case.

KEITH N.BISHOP is an

attorney-at-law and a partner in the firm Bishop & Fullerton.