COMPARATIVE FAMILY LAW MAINTENANCE OF AN ESTRANGED SPOUSE IN NIGERIA AND

SOUTH AFRICA
BY
CONSTANCE OSE OAIKHENA

Introduction
Although the primary aim of most petitioners in a divorce proceeding is to seek an order of dissolution of their
marriage, it is however not unusual or uncommon for the parties to seek the courts pronouncement on the amount
of maintenance payable and to whom.
Prior to recent times, maintenance was usually paid by a husband to his estranged wife. It was more or less a sole
right of an estranged wife.
However, under current law in most jurisdictions, maintenance may be paid by either the wife or the husband in
support of the other.
This paper seeks to discourse the maintenance of an estranged spouse in Nigeria viz-a-viz South Africa. To this end,
attempt would be made to explain the meaning of maintenance (spousal), the types, principles guiding the award of
maintenance, calculating the amount to be awarded as well as the termination of a maintenance order.
Meaning of Terms
MAINTENANCE
The 8th edition of the Blacks law dictionary defines maintenance as the financial support given by one
person to another, usually paid as a result of a legal separation or divorce.
The term maintenance is used interchangeably with alimony in some jurisdiction it means the provision made by a
man for a woman who was formerly his wife.
The matrimonial causes act describes the term maintenance as payment of an allowance to a spouse during or after a
divorce.
A maintenance order can be granted by the court during the course of a divorce proceeding or after its conclusion.
One can therefore say maintenance is a financial support which is usually periodic, received by a party claiming
maintenance.
ESTRANGED SPOUSE
The term estranged means to be separated. An estranged spouse is therefore one who no longer lives with
his wife or husband and is separated from such a spouse.
TYPES OF MAINTENANCE
The provisions of Section 73(1)(h) states that the court in exercising its powers under this Act may make a
permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during
joint lives or until further orders. The Court can therefore make any of the following types of order for maintenance:
Rehabilitative Maintenance: This type of maintenance is often times awarded to middle-aged women who
have for years devoted themselves to the upbringing of the children of the marriage and were full time
 house wives. Its purpose is to enable them to be trained or retrained so as to find suitable employment. It is
usually for a specific period.
Permanent Maintenance: This is usually a life- long maintenance usually awarded to an elderly wife who
through-out the subsistence of the marriage was never gainfully employed and was married to her husband
for a long time and is too old to earn a living of her own and very unlikely to remarry.
Interim Maintenance: This is usually made pending the determination of proceedings of a Divorce
STATUTORY PROVISIONS ON MAINTENANCE IN NIGERIA AND SOUTH AFRICA
In Nigeria the power of the court to grant an order for maintenance is contained in section 70 of the Matrimonial
Causes Act1. (hereinafter the Act). It provide: Subject to this section, the court may in proceedings with respect
to the maintenance of a party to a marriage or of children of the marriage, other than proceedings for an order for
maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means,
earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
Similarly, section 7(2) of the Divorce Act 70 19792(South Africa) (hereinafter the Divorce Act provides: In the
absence of an order made in terms of subsection(1) with regard to the payment of maintenance by the one party to
the other, the court may, having regard to the existing or prospective means of each of the parties, their respective
earning capacities, financial needs and obligations, the age of each party, the duration of the marriage, the
standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the breakdown
of the marriage, an order in terms of subsection(3) and any other factor which in the opinion of the court should be
taken into account, make an order which the court finds just in respect of the payment of maintenance by the one
party to the other for any period until the death or remarriage of the party in whose favor the order is given,
whichever event may occur first.
In Nigeria likewise in South Africa, the duty to pay spousal maintenance arises in two way: first is when granting a
decree of divorce, the court may in accordance with the written agreement between the parties make an order with
regard to the payment of maintenance by one spouse to the other. This is usually the case where a settlement
agreement is entered into between the parties prior to finalization of the Divorce. On the other hand it could be
granted
The award of maintenance by the court is purely discretion both in Nigeria and South Africa. Hence a party claiming
maintenance must prove his/her entitlement to maintenance.
The provisions of the Matrimonial Causes Act of Nigeria and the Divorce Act of South Africa outline certain factors
the court would consider in awarding maintenance
FACTORS THE COURT WOULD CONSIDER IN AWARDING POST DIVORCE SPOUSAL MAINTENANCE
In Nigeria Section 70 of the MCA states a number of factors the court would consider in awarding maintenance.
They include:

1
Matrimonial Causes Act Cap M7 Laws of the federation of Nigeria(2004)
2
Section 7(2)Divorce Act 70 1979 (Substituted by Section 36(a) of Act 88 1984)
 The Means of the parties: Having regard to the means of the parties, maintenance will normally not be
granted if the spouse claiming maintenance has sufficient means to cater for him/herself3 The blacks law
dictionary defines means as available resources especially for the payment of debts 4. The means could
also include income. where a party has no assets or monthly income, the court would not hold him liable
for maintenance of his spouse5. A party claiming maintenance would therefore need to prove the means of
the other against whom a claim is made.
In Eluwa v Eluwa6, the court granted a monthly maintenance of the sum of #250,000 after it was determined that the
husband earned #1.300,000 per month.
Earning Capacity of the Parties : The blacks law dictionary7 defines earning as revenue gained from
labour or services or from the investment of capital or assets. The earning capacity also includes the
potential earning capacity of a spouse. The supreme court in Negbenebor v Negbenebor 8 considered what
earning capacity, income and assets means. The lower court from whose judgment the husband appealed
had added the value of a house, owned by the husband and money he had in a bank to the regular earning of
the husband to constitute his income, added the wifes earning and divided into three, and held the wife was
entitled to one third of the total sum as her maintenance. The Supreme Court however held that the learned
trial judge was in error as the means of the respondent include his salary and earnings from private practice
and does not include the value of his assets.
Conduct of the Parties to the marriage
The conduct of the parties to the marriage is one factor to be considered. Where the applicant is the guilty
party, if maintenance will be awarded and the size of maintenance to be awarded, will largely depend on
the gravity of the applicants misconduct. In the English case of Trestain v Trestain 9 decree nisi was
granted by the court of first instance to the husband on grounds of the wifes cruelty. On Appeal, the court
of Appeal found the husbands conduct was actually responsible for the break-up of the marriage. It
therefore held that the decree does not bar the wife from obtaining an order for maintenance.

All other Relevant Circumstances

The provision of the Matrimonial Causes Act gives wide discretion in dealing with applications for
maintenance. The list of other relevant factors is inexhaustive. However, the circumstances of each case
would determine other factors the court would consider.

3
Sagay I (1999)
4
Garner B.A (2004) Blacks Law Dictionary 8th Edition. West Publishing Company, Boston page 1002
5
Sagay I
6
(2013) LPELR 2210(CA)
7
Garner B.A Op.cit page 548
8
(1971) 1 ALL N.L.R 210
9
(1950) WLR Page 198
 In Dawodu v Dawodu10the wife had applied to court seeking an increase in the sum of #25 which the
husband/respondent was already paying as maintenance for herself and the only child of the marriage. The
court dismissed the application having found that the husband shouldered some of the extended family
financial responsibilities, paying rent for his age mother from his total salary of #56 while the wife earned
about #35 plus #83 from which she spent only #12 for her accommodation.
Similarly in South Africa, provisions for criteria for the award of maintenance is made under section 7(2 )
of the Act11. Granting an award for maintenance is also at the courts discretion. The Supreme Court of
South Africa has held in EH v SH12that a person claiming maintenance must establish a need to be
supported by the other spouse and that if no such need is established, it would not be Just for a
maintenance order to be issued. The court would therefore consider the following factors
The existing or prospective means of the Parties
Under South African Law, the term Means refers to a persons financial resources and includes capital
assets, income from employment and other sources to which a person has assess which is not in his or her
possession. In k v k13the court found that the parties means will include property such as a matrimonial
home which can be used to generate income. The court also held in j v j 14that a trust generates incomes but
means does not include a possible inheritance or voluntary payments to a spouse by his/her children from
a previous marriage. Determination of a persons prospective means can only be achievable upon division
of assets after divorce.
The respective earning capacities of the Parties
After Divorce it is expected that parties live independently of one another as soon as possible. The court
will generally attempt a complete termination of financial dependence of one spouse on another where the
circumstances permit. This is called the Clean-Break principle. Where a woman is earning enough or has
sufficient income from assets to support herself and maintain her standard of living, the court will generally
be reluctant to grant an award of maintenance in her favor. Where a woman is young, healthy, well
qualified and employable and has no children or young children and has worked during the subsistence of
the marriage, the court having accessed the income of both parties would first determine if their respective
income would each meet their various maintenance needs before considering an award. In p v p 15the court
observed and warned that there is a vast difference between a situation where a woman is indeed able to
maintain herself because she is in fact working or has assets from which she can support herself and a
situation where a notional earning capacity is attributed to her. A womans ability to earn an income does
not by itself disentitle her to maintenance since the reasonableness of her decision not to work must be
considered in light of factors such as age, state of health, qualification and period of last employment, the

10
C.C.H.C/5/74 p.617
11
Section 7(2)Divorce Act 70 1979
12
(2012(4) SA 164(SCA)
13
(1986) 4 SA 616 (E)
14
(2004) 1 ALL SA 426
15
(1990) 1 SA 998 (E)
 duration of the marriage, the standard of living of the parties during the marriage and a commitment to the
care of young children and others.
Confirming this, the court in k v k16 considered a wifes decision to remain working only in a part-time
capacity to be reasonable since this would be in the best interest of the children.
The financial needs and obligations of the parties
The court stated in k v k17that this factor means how much money each parties would need for their day-to-
day living and how much of the income or resources of each has to be spent for some obligatory purpose.
In b v b18 a wife had made an application for interim maintenance for herself and two adult children who
resided with her. The court found that in having to use her household budget to run the family home and
provide groceries for 3 member household, the wife incurred an obligation within the meaning of section
7(2) of the Act.
What constitute a need for a party will depend naturally on the standard of living of the couple during the
marriage. What is considered to be a need in one family may be considered a luxury in another. Hence the
need for the distinction between wants and needs.
The age of each party and the duration of the marriage
Where a marriage is short-lived, it is usually easier for the parties to cut all financial ties fairly quickly.
Often times, stay-at-home housewives find it difficult to get back into the labor market due to age and lack
of work experience. Hence a court would more likely grant maintenance as it would in the case of an older
woman whose age would make it impossible for her to further her career and improve employment
prospects.
As regards the duration of the marriage, a wife of long standing who assistance her husband has enjoyed
over a long period of time and who in thus succeeded in building for him-self a separate entity would be
entitled to far more than one who stayed for a few months or years. The court is granting maintenance
would look at the duration of the marriage and the fact that the wife performed the role of a housewife and
mother and never worked in the open market why the marriage lasted. The court however does not award
maintenance with any form of liberality towards women who can and ought to work after divorce.
The parties standard of living during the marriage
This plays an important role in deciding the amount of maintenance to be award. Ideally, the standard of
living of the parties should not decline after divorce. Hence, the court would balance the need of both
parties in any case. Where money is no object, there is seemingly no reason why a divorced wife and her
children cannot continue to enjoy the same standard of living prior to divorce. The fact that a wife can
support herself does not preclude the court from granting an award for maintenance. Thus if supporting
herself would lead to a decline in the standard of living, the court may award her maintenance.

16
(2006) 6 SA 127(C)
17
Supra
18
(2009) 2 SA 421 (C)
 In P v P19 1990(1) the court stated that a wife should, in my view be able to expect same standard of living
that she had as a married woman. In most cases it may not be possible to achieve this goal, and of course a
husband should be entitled to the same expectation, but in the final result, it is a question of balancing up
the needs of both parties and making an equitable distribution of the available income
Similarly in Mb v Nb20irrespective of the wifes earning and the court having weighed same, awarded
maintenance which was to run for three years in favour of the estranged wife. In this case one of the issue
for determination was if the plaintiff was entitled to maintenance being in employment. Her income and
expenditure were accessed alongside her standard of living during the subsistence of the marriage,
The conduct of the parties in so far as it may be relevant to the breakdown of the marriage.
In considering the conduct of the parties and the breakdown of the marriage, the relevance of such conduct
would be ascertained. Thus, where a husband is who is unable to work due to ill-health, is supported by his
wife morally and financially for a number of years, later becomes healthy and wealthy and disregards his
wife after she must have given him the best years of her life, a court may award maintenance if it is proven
that his gross misconduct caused the breakdown of the marriage.
In G v G21 the court viewed a husband persistent adultery as gross misconduct, and stated that it must
inevitably play no small part in deciding whether or not to award to the wife maintenance. The wife was
awarded permanent maintenance.
Any other factor
These could include the best interest of the children, childcare responsibilities of the dependent spouse, the
high rate of inflation and the way in which each party conveyed his or her financial position and needs. All
these and more have been considered by the courts.
CALCULATING THE AMOUNT OF A SPOUSES MONTHLY MAINTENANCE NEEDS
Calculating the amount of maintenance has always been the main area of contention as regards
maintenance22. Up till 1971, it would seem that he old rule that a wife should be granted so much
maintenance as would bring her income up to one third of her the husband held sway. 23 The Matrimonial
Causes Act does not lay down any criterion hence the provisions of section 70 as to factors the court would
be considered before awarding maintenance. The position in South Africa is similar as the Divorce Act
does not stipulate the procedure for calculating the maintenance amount.
The Court having considered certain factors can therefore at its discretion, draft an income and expenditure
for each party. In cases where minor dependent children have to be maintained, the needs of such children
in specific order must also be calculated. The spouse with whom such children would reside will obviously
have more expenses.

19
(1990) 1 SA 998 (E)
20
(2010) 3 SA 220 (GSJ)
21
(1987)1 SA 48 (C)
22
Olanike Odewale : Situation Report on Child Maintenance in Africa: Report on Nigeria. Available on
https://www.childsupport-worldwide.org accessed on July 26, 2017
23
Negbenebor v Negbenebor (1971) 1 ANLR 210
 TERMINATION OF MAINTENANCE ORDER
In Nigeria Section 73(1)(j) i-ii provides:24In relation to an order made in respect of a matter referred to in
section 70, 71, or 72 of this Act, whether made by the court or another court, and whether made before or
after the commencement of this Act:
(i) Discharge the order if the party in whose favour it was made marries again or if there is any other
just cause for so doing:
(ii) Modify the effect of the order or suspend its operation wholly or in part and either until a fixed
time or the happening of some future event.
Similarly, section 7(2) of the Act 25 states that an order for maintenance may be made by the court where it
finds it just for any period until the death or remarriage of the party in whose favor the order was made,
whichever event may occur first.
One can therefore say the remarriage or death of a party in whose favour a maintenance order was granted
would lead to the termination of the order.
On a spouse claiming maintenance for dependent children, the Matrimonial Causes Act makes this
plausible till the child is 21years old. It could continue where the court is of the opinion that there are
special circumstances that justify the making of such other to benefit the child. One of such may be on
grounds of ill-health or disability of the child.
The South African Divorce Act does not however state the age limit but uses the language until the child
becomes self-sustaining. In recent times however the age limit is seemingly 18years in South Africa. But
the child Rights Act could become handy where the need arises.
CONCLUSION
Having considered the maintenance of an estranged spouse in Nigeria and South Africa, one would observe
that the award of maintenance is at the discretion of the court. The South African law supports the Clean-
Break principle this means neither spouse has a right to maintenance upon divorce hence it is expected that
after divorce the parties are to as soon as practicable become economically independent of each other. From
the wordings of both the Matrimonial Causes Act of Nigeria and the Divorce Act of south Africa, a wife is
not solely entitled to maintenance. Hence a husband can claim maintenance against his wife where she has
the means.
The provisions of section 70(1) of the Matrimonial Causes Act which confers on a husband a right to claim
maintenance from the wife , in the writers opinion, is inconsistent with the prevailing norms and values of
the Nigerian society irrespective of the perceived change in the status of wives. Hence a husband should
only be allowed to claim maintenance on grounds of being incapacitated physically or mentally.
The Provisions of the law in Nigeria and South Africa regarding the maintenance of an estranged spouse
are similar as the courts discretion is paramount.

24
Section 73 Matrimonial Causes Act Cap M7 LFN 2004
25
Divorce Act 70 of 1979