The Black's Law Dictionary defines "alimony‟ as 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. The Matrimonial Causes Act, LFN 1990 (the Act), which is the primary legislation governing matrimonial matters makes provisions for Alimony in Nigeria.
The Act does not mention the word "alimony" but instead uses the word "maintenance" to describe the payment of an allowance to a spouse during or after a divorce. The terms are sometimes used interchangeably by the Nigerian Courts suggesting that they refer to the same thing.
Maintenance is one of the ancillary reliefs available to a party seeking a dissolution of marriage or other matrimonial reliefs in Nigeria. By section 69 of the Matrimonial Causes Act, an order for maintenance can be made in respect of parties to either valid marriages or void marriages but does not include one entered into according to Muslim rites or other customary law. Part IV of the Matrimonial Causes Act provides generally for the making of orders for maintenance, custody and settlements in favour of a husband, wife, children, or adopted children of marriage upon divorce.
From the wordings of section 70 of the Matrimonial Causes Act, it can be deduced that an order for maintenance can be granted to either party to the marriage suggesting that it could be made in favour of a male spouse, in other words, both parties have been placed on the same pedestal in terms of the right to seek for maintenance. The case of Nakanda v. Nakanda is instructive on this position, in this case, the Court of Appeal rejected the decision of the lower court and held that under the Matrimonial Causes Act, the position of the husband and the wife are the same and either party is entitled to maintenance from the other, provided the conditions in Section 70 of the are taken into consideration, and that the old Common Law idea that the husband must maintain the wife is repugnant to the idea behind the Matrimonial Causes Act.
Granting a degree against a spouse does not disentitle such a spouse from maintenance, for instance, the mere fact that a court rules in favour of the husband does not mean that the Court cannot order him to pay maintenance to his wife.
The High Court is empowered by section 70 of the Matrimonial Causes Act to make various orders in respect of the maintenance of spouses. By virtue of the provisions of Section 70(1)(2) of the Matrimonial Causes Act, in granting maintenance, the Court is required to consider what is just and equitable in the circumstances of each case, having regard to the means, earning capacity, the conduct of the parties to the marriage and all other relevant circumstances. These factors shall be briefly explained below.
Means of the parties – this includes but is not limited to capital assets, liquid cash, shares in a company, investments, contingent and prospective assets of the parties, etc.
Earning capacity – includes the potential earning capacity of parties.
Conducts of the parties – the court will only take into consideration gross and obvious conduct of the parties such as inflicting grievous body injuries on one spouse, firing a gun at one's spouse, committing adultery within the matrimonial home, etc. Conduct of parties may make a party get more or less than he or she would have ordinarily been entitled to.
Other relevant considerations – this involves the court's discretion to take into consideration the peculiar facts and circumstances of each case. For instance, in Ajakpe v Ajakpe the Court considered the length of years parties have spent together as a couple.
From the provisions of the Act, maintenance is essentially divided into two types; they include maintenance pending proceedings for matrimonial reliefs (maintenance pendente lite) and maintenance after the completion of proceedings (maintenance per se).
By Section 73 of the Matrimonial Causes Act, the court can order that maintenance be paid weekly, monthly, yearly, or even as a lump sum. Furthermore, the court is empowered to review maintenance orders, parties can also decide to agree on maintenance, but this cannot oust the jurisdiction of the court to review the same.
In conclusion, it is worthy to note that maintenance is not a punitive order or one that seeks to share a spouse fortune, but one granted to maintain the standard of leaving one is accustomed to so far as practicable and as such maintenance will ordinarily not be granted if the spouse claiming this relief has sufficient means and income to maintain him or herself, thus the applicant's earning capacity is an important determinant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.