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High Court rules ex-husbands can now claim for maintenance after divorce
Kaieteur News – Former husbands are now in a position to claim for maintenance or spousal support following divorce proceedings. In a landmark ruling on Monday by Chief Justice (AG) Roxane George-Wiltshire, it was determined that either party can apply for maintenance.
Chief Justice Roxane George-Wiltshire
The ruling stemmed from a constitutional motion filed to challenge the alimony laws that have existed in Guyana since the early 1900s.
In the matter, a husband through his attorney, Tamara Evelyn-Khan, sought to apply for his ex-wife to pay him maintenance following their divorce but was told that he could not apply because the law does not allow for men to benefit from spousal support.
As a result, the man moved to the High Court to challenge the law, specifically Section 14 of the Matrimonial Causes Act on the grounds that it violated his constitutional rights to equal protection and benefits from the law and is discriminatory on the basis of sex and gender.
In her arguments, Evelyn-Khan noted while that section of the Matrimonial Causes Act secures what can be described as a tremendous benefit to a wife it disallows the same benefit to accrue to husbands.
“He is simply disallowed as is the applicant in this matter from seeking alimony/maintenance,” the attorney said in her arguments to the court.
She noted therefore that the necessary questions of discrimination and equality became relevant.
Attorney-at-law, Tamara Evelyn-Khan
Evelyn-Khan noted that, “Article 149 D guarantees that laws and their provisions shall not be discriminatory, in themselves or their effect. Discriminatory means treating persons differently wholly based on gender, sex, et al. The article notes exceptions and speaks to different treatment where it is reasonably justifiable. There is a further scope of different treatment where it is reasonably justifiable. There is a further scope of guarantee /s regarding fundamental right in Article 149 D which secures to the applicant equality before the law or equal protection and benefit of the law.”
She submitted too that Section 14 of the Matrimonial Causes Act infringes on these guarantees with no justifiable reason while noting that the applicant being a man cannot be a reason to deprive him of the benefit of the application for alimony/maintenance.
“Such a restriction certainly also offends against the full enjoyment of the fundamental right; protection from discrimination e quality before the law and equal protection and benefit of the law,” the attorney added.
In her ruling on Monday, Justice George-Wiltshire struck down provisions of the Matrimonial Causes Act which provided that only men were liable to pay maintenance.
In her decision, the judge declared that Section 14 of the Matrimonial Causes Act, Chapter 45 :02 is discriminatory on the basis of sex and gender and is therefore unconstitutional as being in violation of Article 149 and Article 149 D of the Constitution of Guyana, to the extent that on a decree for dissolution or nullity of marriage, it provides for men only to pay a gross or annual sum of money to or maintain their former wives, and not for women to pay a gross or annual sum of money to or maintain their former husbands.
Therefore, until the National Assembly makes adequate provision, Section 14 of the Matrimonial Causes Act, Chapter 45:02 is hereby modified to permit applications by either a husband or a wife for payment of a gross or annual sum of maintenance so that the said Section 14 is in compliance with Articles 149 and 149D of the Constitution of Guyana.
As a consequence, it was declared that the applicant is entitled to apply for maintenance from his former spouse.
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