MAINTENANCE

At common law, there is no direct liability on a parent to maintain his or her child whether the
child was born in wedlock or out of wedlock. There was no legal duty to maintain a child at
common law. The duty was merely a moral one. However, the position of the guardian was
different. At common law, a guardian is under a duty to maintain his ward out of the ward`s
property. There is obligation to use your own resources, as a guardian, for the maintenance of a
child at common law.

The inadequacy of the common law let to the statutory intervention which imposed the duty on
both parents to maintain the child born in wedlock. Further changes then led to the mother being
responsible for the child born out of wedlock, because she was identifiable. Further statutory
intervention, under the Maintenance Act of Guyana, provided that both parents were liable to
maintain their children, whether born in or out of wedlock. The Act still enforced, because it
does not only deal with the maintenance of children, but where there is an application or an issue
invloving the maintenance of the child, the provisions of the Maintenance Act do not [Link]
position is now governed by the custody, contract, guardianship and maintenance act and some
of the provision of this Act are similar to the family and children act of Belize.

Today, the obligation to maintain a child is not dependent on the marital status of the parent, but
rather on the relationship of parent and child. The Act goes further and imposes an obligation for
the maintenance of stepchildren (the child of one`s spouse) children of a common law spouse a
person treated as the child of the family and grandchildren where the parents are unable to
maintain them. The obligation of the grandparent is limited to the inability of the parent to
maintain, rather than willful refusal. The grandparents` liability is only triggered by the inability
of the parents to maintain. The provision is not new; it was provided under the Maintenance Act.
Whilst, in some jurisdiction, maintenance is tied to relationships of consanguinity or blood
relationships, in Guyana, such a relationship is not necessary to create an obligation. In Guyana
the duty also extends to the adopted child, given that once there is an adoption, there is the
further creation of a parent-child relationship.

In summary, there is the duty to maintain one`s own child, whether the child is born in or out of
wedlock. The Status of Children Act deals with certain presumptions, so once any presumptions
is applicable and the parent-child relationship is established from these presumption, there is a
duty to maintain.

There is a duty to maintain the child of your spouse, where that child was born prior to the
marriage and resides with you as part of the family. See S.47(1)(b) of the Custody, Contract,
Guardianship and Maintenance Act to understand the following discussion. If the male gets a
child, outside of the marriage, this provision would not apply given that the child was born after
the marriage. If the female gets a child, there is a presumption that because she is married, the
husband is the father of the child. Unless the presumption is rebutted, he has a duty to maintain
that child even though the child may not be his biological child. Essentially, under the particular
limb, if there is a marriage and the husband has a child after the marriage, there is no duty, on the
wife, to maintain that child, considering that the Act says, at least under the ground, that the child
must have been born before the marriage and must resides with them as a part of the family.
Under the limb, if there was a child born before the marriage who does not resides with them as a
part of the family, there would be no duty on the wife to maintain. If the person who has the
child is the wife, then because of the presumption that the husband is the father, he would have
the duty to maintain. This situation is also mirrored in instances of cohabitation, but again, the
child must be born prior to the commencement of the cohabitation.

Regarding the child treated as a child of the family, if the is the child and they are treated as a
child of the family, there is a duty to maintain. For example, if there is a child of a husband who
is born after the marriage and if this child is brought and allowed into the home and the child is
treated as a child of the family, there is a duty to maintain. This is a different ground that would
be applied.

There is also a duty to maintain the child or children of your own child, where your child is
unable to do so. The courts do not act on the simple failure to maintain; there must be an inability
to maintain for the grandparents to be bestowed with the liability to maintain.

Under the Act, `child` means someone who is under eighteen -years old who has never been
married, but three things must be noted:
Where a person has a special need, the person is treated as a child under the Act, regardless of
age. If for example, the person has a mental condition that would prevent them from being
treated as an adult, there would be a duty to maintain that `child` because they would be legally
referred to as a child for the rest of the natural life.
Regarding the `child of the family`, the courts would like to see whether the child was treated in
a manner that a child would normally be treated by a parent, including the provision of financial
or emotional support. This would be an unconventional definition, understanding that some
parents do not usually do this.
A parent with whom the child does not reside is taken to have met the responsibility to maintain
by making periodical payments with respect to the child, once reasonably it can be said that the
contribution is sufficient for the maintenance of the child. "Sufficient" would have its own
meaning, because the person would not be only person who is liable to maintain the child. The
child has to parents. If for example the father is living away from the child and he is making a
contribution to the child`s maintenance, if they must be understood that someone else or at least
one other person is liable to maintain that child. If also the mother is or was living with someone
else, the person also has a duty to maintain the child. Thus, for example, you must not look to the
father of the child for the for the full maintenance of $100,000 if the maintenance of the child
amount to $100,000, there are two other person who would be liable to maintain the child. The
$25,000 that he could offer can be sufficient and it does not have to cover all the needs.

Moreover and regarding the parent with whom the child is living, there must be a calculation of
the necessities such as food, light accommodation, these are taken into account. Therefore, it is
not necessary to find that the parent with whom the child is residing in making a cash
contribution, considering that the child is being fed, taken to school and have all of the
necessities a part of the home. These things must be quantified, given that they have a cost.

Other Acts deal with maintenance, for example, there is the Summary Jurisdiction (Magistrates)
Act and the Matrimonial Causes Act, but for these to apply, there must be a subsisting marriage.
For to be a subsidiary claim under these Acts, there must be a subsisting marriage. Under the
Matrimonial Causes Act, X can petition for a divorce and at the same time, request maintenance
of a child of which they have physical possession. Under the Summary Jurisdiction (Magistrates)
Act, X can seek maintenance for himself and as a subsidiary claim, there is a claim for
maintenance for a child of which she has physical possession. These are subsidiary claims and
not a direct application for maintenance. Any direct application for maintenance must be brought
under the current Act. Under the two Acts, the petitions are dependent, for example, a petition
for maintenance under the Matrimonial Causes Act would be dependent on a petition for divorce.

The court is required to give priority to an application for maintenance under the Custody,
Contact, Guardianship and Maintenance Act over all other applications. If an application is made
under the new Act, any other application that is pending is suspended, because priority must be
given to this Act.

GROUNDS OF CLAIMING MAINTENANCE

Under on old maintenance Act, the ground was `failure to maintain` and under the new Act, it is
`failure to maintain where there is liability to maintain`. The reason for this is because you might
be a parent or fall within one of the categories, but there is no liability to maintain.

Under the Summary Jurisdiction (Magistrates) Act, fault must be established and speaks to to
willful neglect to provide or to make a proper contribution to the reasonable maintenance of the
child. There is the recognition of "willful refusal " as opposed to "failure" and it connotes that
one has the ability to maintain, yet they had come to the decision not to maintain. The court
would consider such matters as it deems fit into account, before it decides (a) whether it should
make an order and (b) the quantum of that order, The court consider:

(a) The income, earning capacity, property and other financial resources with each person liable
to maintain the child has or is likely to have in the foreseeable future. They consider the income
and the scope of their consideration is not just limited to that; the court look to see the property
that is in your name. The focus is also what would be the sta222te of affairs in the foreseeable gd
ddd5h5hh5azzd future and what the persons liable to maintain would have in the foreseeable
future and they can make an order which they anticipate will vary soon.
(b) The Financial need, obligations and responsibilities each person liable to maintain the child
has or is likely to have in the foreseeable future. There is also the focus on the needs of the
applicant, given that some children are earning from a very young age. The courts consider the
income, earning, capacity, property, financial resources of the child, any special needs of the
child and the manner in which the child was being or is expected to be educated or trained.

Instead of awaiting an order being made against you or an application by someone else for
maintenance, if you are liable to maintain the child, you can also apply to the court for an
assessment to be made. This could be helpful in instances where you might not want to wait or
the other person, who can make the order against you, is someone with whom you would not
want any conflict. You can do this to ensure that whatever you are doing is sanctioned.

In deciding whether to make a maintenance order against a person with regard to a child who is
not his own child, apart from those abovementioned consideration, the court will take into
account whether that person assumed responsibility for the child`s maintenance, and if so, the
extent to which, the basis upon which, and the length of time for which the responsibility was
assumed. This would apply in instances where the child was born prior to the marriage and the
child is living with you as part of the family. This is not a reference to the category in which the
child is treated as a child of the family. There may be a situation in which your spouse brings a
child in to live with you as a part of the family, but you do not want the child there. Could it be
said that you assumed responsibility for the child`s maintenance? another instances would be
where the wife is pregnant, gives birth, and the presumption stepped in and the husband
maintained the child upon the basis of the presumption. That is the basis upon which the
maintenance was provided, but the child is not really the husband`s child. The courts will take
these facts into account and they will vary the quantum. These are difficult things for the court to
do without the evidence.

The court also consider whether, in assuming the responsibility, you did so, knowing that the
child was not your and the liability of any other person to maintain, understanding that the child
must have another parent somewhere else.
Where a person who is alleged to be the parent denies parentage, the maintenance cannot be
made, unless that person has been declared, found or adjudged to be the parent of the child. If
you are denying, you must get through paternity aspect of the situation. There must be evidence
which essentially rebuts a presumption or it could be a case which there is no presumption
applicable. If there is no presumption applicable and someone claims that they are not the parent
of the child, there must be a process to go through. The declaration, adjudication, or the finding
must still subsist, to the extent that it must not have been set aside and the child must not have
been subsequently adopted. Adoption would terminate any obligation. The only thing that
adoption retains would be the prohibition with respect to marriage and sexual offences.

The person is presumed to be the parent by virtue of one of the presumptions; if these apply, the
court can go ahead with the adoption order or if a birth certificate which bears the name of the
person as the parent of the child.

THE ORDER OF THE COURT

The court can make any order so they can construct an order to suit the situation before them. If
the case seems complicated, they can make an interim order, imposing conditions or restrictions.
They can make an order requiring to settlement of property for the benefit of the child transfer
the property to the applicant for the benefit of the child or the property can be transferred to the
child, because there may be a case where there is immovable property, but someone is liquid.
The court may find, in those circumstances, that the child is properly maintained by the other
parent, living comfortably, and there is no need or rush for immediate cash, but they may order
the transfer of the property to the child, so that they take possession when he or she comes of
age. There is a duty to maintain, even if the child is being taken care of.

The court can also make an order to award the child a lump sum or periodical payments, and
sometimes those can be specific, for example, can be ordered that X would be responsible for the
child`s educational needs. These arrangements can be arrived at as well.

The court can also require a person to give security to support any maintenance order, especially
if periodical payments are to be made and property is owned. The courts may order a `hold` on
that property to ensure that the periodical payments are made, understanding that they would not
want you to sell the property and you would have nothing to hold on to afterwards.

Importantly, the court can also order that maintenance be paid in a combination of these various
order, for example, they can order for property to be settled, some other property to be given to
the child, some other to be transferred, and an order for a lump sum. The courts can decide how
to combine these.

The order must specify the amount to be paid and the period for which the amount applies. It
must specify when the payment is to be made, where and to whom; `where` because there are
different modes of dealing with the payment of maintenance, for example, someone may agree
for the deduction to be made from their salary or it may be agree that the payment be made into
court, so the registry collects the money, or the person can decide if it is amicable to do a direct
cash grant, or a transfers from one bank to another, especially if the two adults are not on fair
terms.

The courts would provide the breakdown where more than one child is involved, because there
could be a situation where a child has a special need over and above another, so $5,000 may be
order for one, but $25,000 for the other. It must specify the name and date of birth of the child,
so it can be ascertained whichever portion the child is to receive and any other information that
the court think fit, including a provision that if the child is taken out of the jurisdictions, there
would be a suspension of the obligation to maintain.

DURATION OF MAINTENANCE
Maintenance runs from the making of the order until the date stipulated or the child1s eighteenth
birthday in the first instance. If, however, the child is in an educational institution, receiving
instruction or undergoing training for trade or a profession or vocation, it can be extended to the
child`s twenty-first birthday. It has to be a recognized institution. If the child in question is
unable to maintain himself or herself by reason of illness or special needs, the court can extend
the order. The court can also take into account whether there are any other special circumstances
that justify extending an order beyond the age of eighteen.
VARIATION AND CANCELLATION OF ORDERS
A maintenance order is subject to review, so if there is a change of circumstances, there can be a
variation or even a cancellation of a maintenance order, it is never final. There must be a material
change of circumstances that would allow for that. You cannot rely on anything that was
foreseeable when you made an application or when the order was made. You cannot also rely on
a situation that you brought about ordinarily, for example, if A is to provide maintenance to C, A
later decides to stop working, it could be said that A brought about their own unemployment. I,
however, A subsequently marries D, there would be a duty upon him to maintain his own spouse;
that can be raised and could be deem as a change of circumstances. This can also extend to
instances in which A has another child to whom there is the obligation to maintain. It can be
contended that the quantum of maintenance to C be reduced. Death does not have the effect of
cancelling the order. A maintenance order shall continue to have effect even after the death of a
who is liable to maintain. This can be enforced against the estate and only a court can make the
variation. It the person against who the order is made subsequently comes to live with the child
or children goes to live with the person for a period of more than sis months, there would be a
suspension or cessation of the order, because as long as a child is residing with you, you are
taken to be meeting your contribution, given that there are accommodations, housing, and all
other necessities. With maintenance order, the issue is not necessarily the best interest of the
child, it is just that there is a duty to maintain the child. If, however, the child is able to maintain
himself or herself, the order that the court will make will come into effect in the event that the
child is unable to maintain himself or herself. There are some children who earn more than the
parents, but there is still the liability on the parent to maintain. The court may ask why they
would want to make an order, given that the child is earning. Therefore, the courts can opt to
make an order in an event that the child is unable to maintain themselves. Under the old act, as
long as you were able to maintain yourself, an order was not made and you were deemed to be
able to maintain yourself from the age of sixteen.

The concept of maintenance is largely statutory. The case law often modes not dispute the actual
quantum, but it demonstrates whether or not you are liable to maintain. A maintenance order can
be enforced through the possibility of imprisonment and a contempt of the court order. Initially
imprisonment wipes the slate clean, so once someone served their time, whatever balance was
owed towards maintenance was erased. The position is now that imprisonment does not remove
the debt, but adds a 6% interest to it. The court can also garnish your earnings from orders
directed to your employer to make deductions. The court can also seize the assets, distress can be
levied on a person`s property, the property can be sold, and the debt can be satisfied. A new debt
can be satisfied by levying distress again. Bank accounts can also be frozen. It can be indicated,
in circumstances where a debt was owed, that the court take priority in order to satisfy the debt.
The three main methods of enforcement would be imprisonment, garnishment of income, and
levying distress as long as this is not done on the tools of one`s trade.

Note also that the person making the application need not be the other parent. Other person can
also make an application.