COMMONWEALTH OF DOMINICA
ARRANGEMENT OF SECTIONS
Section
PRELIMINARY
1. Short title and commencement. 2. Interpretation.
PART I
OBLIGATION TO MAINTAIN
3. Obligation to maintain spouse. 4. Obligation to maintain after termination of cohabitation. 5. Obligation to maintain parent.
PART II
MAINTENANCE ORDERS
6. Maintenance Order. 7. Application for maintenance order. 8. Powers of Court on hearing an application. 9. Matters to be considered in making maintenance order
for spouse. 10. Powers of Court regarding maintenance orders. 11. Duration of maintenance order. 12. Variation or discharge of maintenance order. 13. Method of payment. 14. Order of attachment in relation to pension or income. 15. Financial disclosure. 16. Costs. 17. Depletion of property.
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2023 MAINTENANCE ACT 13212
PART III
ENFORCEMENT
18. Designation of Collections Officer. 19. Arrears. 20. Payment during respondent’s incarceration for any
offence. 21. Leaving State to evade order. 22. Misapplying monies. 23. Change of address or employment of liable person. 24. False statements.
PART IV
MAINTENANCE AGREEMENTS
25. Agreements in respect of maintenance. 26. Agreement unenforceable. 27. Agreement to defeat creditors.
PART V
MISCELLANEOUS
28. Appeal. 29. Payments under maintenance orders to be kept separate. 30. Unclaimed amounts. 31. Regulations. 32. Repeal and transitional.
COMMONWEALTH OF DOMINICA
ACT NO. 13 OF 2023.
I Assent
CHARLES A. SAVARIN President
9th May, 2023
AN ACT TO PROVIDE FOR THE LAW RELATING TO THE MAINTENANCE OF SPOUSES AND PARENTS AND TO PROVIDE FOR CONNECTED AND INCIDENTAL MATTERS.
(Gazetted 11th May, 2023.)
BE IT ENACTED by the Parliament of the Commonwealth of Dominica as follows:
PRELIMINARY
1. (1) This Act may be cited as the —
MAINTENANCE ACT 2023.
(2) This Act shall come into operation on a day appointed by the Minister by Order published in the Gazette.
Short title and commencement.
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LS
213
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2. In this Act—
“attachment order” means an order of attachment made under this Act;
“cohabit” means to live together in a conjugal relationship outside marriage;
“Collecting Officer” means a person designated as a collections officer under section 18;
“Court” means the Magistrate’s Court;
“dependant” means a person to whom another person has an obligation to provide support under this Act;
“liable person” means a person who is liable to make payments under a maintenance order;
“maintenance order” means an order made under this Act for the maintenance of a dependant;
“minor” means a person under the age of eighteen years;
“Minister” means the Minister responsible for social services;
“respondent” means a person against whom, an application for a maintenance order has been filed;
“single woman” or “single man”, used with reference to the definition of “spouse”, includes a widow or widower, respectively, or a divorcee;
“spouse” includes —
(a) a single woman who, for a period of not less than five years, has cohabited with a single man as if she were in law his wife; and
Interpretation.
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(b) a single man who, for a period of not less than five years, has cohabited with a single woman as if he were in law her husband.
PART I OBLIGATION TO MAINTAIN
3. Each spouse has an obligation, so far as he or she is capable, to maintain the other spouse to the extent that such maintenance is necessary to meet the reasonable needs of the other spouse, where the other spouse cannot practicably meet the whole or any part of those needs having regard to —
(a) the circumstances specified in section 8(5); and
(b) any other circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account.
4. (1) In the case of cohabiting parties and subject to this section, after the termination of cohabitation each spouse has an obligation, so far as he or she is capable, to maintain the other spouse to the extent that such maintenance is necessary to meet the reasonable needs of the other spouse, where the other spouse cannot practicably meet the whole or any part of those needs having regard to —
(a) the circumstances specified in section 8(5); and
(b) any other circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account.
(2) An application for maintenance on the termination of cohabitation may be made within twelve months after such termination, and the Court may make a maintenance order in accordance with Part II in respect of the application.
Obligation to maintain spouse.
Obligation to maintain after termination of cohabitation.
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(3) Where a Court acts under subsection (2) —
(a) section 9 applies with the necessary modifications;
(b) the Court shall, as far as practicable, make such orders as will finally determine the financial relationship of the parties and avoid further proceedings between them.
(4) A person shall not be liable to maintain another person under this section if the other person marries someone else or is cohabiting with someone else.
(5) In any case where subsection (4) applies, any order made under this section shall cease to have effect.
5. (1) Subject to subsection (2) and (3) every person who is not a minor has an obligation, to the extent that the person is capable of doing so, to maintain the person’s parents and grandparents who are in need of such maintenance by reason of age, physical or mental infirmity or disability.
(2) In considering the circumstances of a dependant who is a parent or grandparent, the Court shall have regard to whether, by reason of age or infirmity, that dependent is unable to provide for himself or herself.
(3) The obligation of a person under subsection (1) in respect of that person’s grandparent only arises in the event of the failure of the grandparent’s children to do so owing to death, physical or mental infirmity or disability.
PART II MAINTENANCE ORDERS
6. A Court may, on application by or on behalf of a dependant, order the respondent named in the application to maintain that
Obligation to maintain parent.
Maintenance Order.
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dependant and in making such an order, the Court shall, where the order is a monetary order, determine the amount to be paid under the maintenance order.
7. (1) An application for an order for the maintenance of a dependant may be made to the Court by the dependant or any other person who has the care and custody of the dependant.
(2) Where —
(a) a local authority or other Government agency is providing assistance in respect of the maintenance of a dependant; or
(b) an application for such assistance has been made to the local authority or other Government agency by or on behalf of the dependant,
an application for a maintenance order may be made to the Court by the local authority or other Government agency.
8. (1) In hearing an application for an order under section 7, the Court shall act in accordance with subsection (2) if satisfied that —
(a) the dependant is entitled under this Act to be maintained by the respondent named in the application; and
(b) the respondent has failed to fulfil the obligation to maintain the dependant.
(2) The Court shall enquire into the matters referred to in subsection (4) and if the Court is satisfied that the respondent is able to maintain or to contribute to the maintenance of the dependant, the Court shall make a maintenance order that the respondent pay, either to the dependant or to some other appropriate
Application for maintenance order.
Power of Court on hearing an application.
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person named by the Court in the order, such periodical sum as the Court thinks fit, having regard to the relevant circumstances specified in subsection (4), or such other order under section 10(1) as the Court considers appropriate.
(3) Where an application is made under section 7(2) by or on behalf of a local authority or other Government agency, it shall be lawful for the Court to further order the respondent to pay to the local authority or other Government agency, such additional periodical sum as the Court thinks just, as reimbursement for assistance given.
(4) The total amount payable under this subsection shall not exceed the aggregate amount of assistance given by such local authority or other Government agency to the dependant.
(5) In determining the amount and duration of support, the Court shall consider all the circumstances of the parties including the matters specified in sections 5(2) or 9(2), as the case may require, and —
(a) the respondent’s and the dependant’s assets and means;
(b) the assets and means that the dependant and the respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to the dependant’s own support;
(d) the capacity of the respondent to provide support;
(e) the mental and physical health and age of the dependant and the respondent and the capacity of each of them for appropriate gainful employment;
(f) the measures available for the dependant to become
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able to provide for the dependant’s own support and the length of time and cost involved to enable the dependant to take those measures;
(g) any legal obligation of the respondent or the dependant to provide support for another person;
(h) the desirability of the dependant or respondent staying at home to care for a child;
(i) any contribution made by the dependant to the realization of the respondent’s career potential;
(j) any other legal right of the dependant to support other than out of public funds;
(k) the extent to which the payment of maintenance to the dependant would increase the dependant’s earning capacity by enabling the dependant to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(l) the quality of the relationship between the dependant and the respondent;
(m) any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.
9. (1) A maintenance order for the support of a spouse shall —
(a) contain such provisions as will ensure that the economic burden of child support is shared equitably;
(b) make such provision as the Court considers fair
Matters to be considered in making maintenance order for spouse.
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with a view to assisting the spouse to become able to contribute to that spouse’s own support.
(2) In determining the amount and duration of support to be given, to a spouse under a maintenance order, the Court shall have regard to the following matters in addition to the matters specified in section 8(5):
(a) the length of time of the marriage or cohabitation;
(b) the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(c) the effect of the responsibilities assumed during the marriage or cohabitation on the spouse’s earning capacity;
(d) the spouse’s needs, having regard to the accustomed standard of living during the marriage or cohabitation;
(e) whether the spouse has undertaken the care of a child of eighteen years of age or over who is unable, by reason of illness, disability or other cause, to care for himself;
(f) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support;
(g) the effect of the spouse’s child care responsibilities on the spouse’s earnings and career development;
(h) the terms of any order made or proposed to be
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made by a Court in relation to the property of the parties;
(i) the eligibility of either spouse for a pension, allowance or benefit under any rule, enactment, superannuation fund or scheme, and the rate of that pension, allowance or benefit.
10. (1) In relation to an application for a maintenance order, the Court may make an interim or final order requiring —
(a) that an amount be paid periodically whether for an indefinite or limited period, or until the happening of a specified event;
(b) that a lump sum be paid or held in trust;
(c) that property be transferred to or held in trust for or vested in the dependant, whether absolutely, for life or for a term of years;
(d) that some or all of the money payable under the order be paid to the Collecting Officer or to another appropriate person or agency for the dependant’s benefit;
(e) that payment be made in respect of any period before the date of the order;
(f) payment to an agency referred to in section 8(2) of an amount in reimbursement for assistance referred to in that subsection, including assistance provided before the date of the order; and
(g) the securing of payment under the maintenance order, by a charge on property, an attachment order or otherwise.
Powers of Court regarding maintenance orders.
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(2) Section 14(2) and (3) apply, with any necessary modifications, to an order of attachement made under subsection (1)(g).
11. (1) Subject to this section and section 12, a maintenance order shall remain in force for such period as may be specified in the order.
(2) Where a dependant is unable to maintain himself or herself by reason of old age or an illness or infirmity which is likely to be permanent, a maintenance order may be made to be in force for the rest of the natural life of that dependant.
12. At any time after a maintenance order or an order of attachment has been made under this Act, a Court may on the application of —
(a) any of the parties to the proceedings in which the order was made;
(b) any person having the actual care and custody of a dependant; or
(c) any person to whom any payment was directed in such order to be made,
vary the order in such manner as the Court thinks fit, suspend the order, revive a suspended order or cancel the order if circumstances so warrant.
13. (1) Payments for maintenance shall be made by the respondent by the method specified by the Court, including payment to the specified person —
(a) by an arrangement whereby one person gives his authority for payments to be made from an account of his, or on his behalf, to another person or to an account of that other person;
Duration of maintenance order.
Variation, suspension or cancellation of maintenance order.
Method of payment.
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(b) by cheque; or
(c) in cash.
14. (1) The Court may make an order of attachment in respect of any pension or income that is capable of being attached, directing the person paying the pension or income to periodically deduct a sum for maintenance and to pay that sum to the Collections Officer.
(2) An order of attachment under this section must contain a penal notice notifying the person ordered to make the deduction and subsequent payment that he will be personally liable for the payment if he fails to make the deduction in compliance with the attachment order.
(3) An order of attachment under this section shall be an authority to a person by whom any pension or income affected by such order is payable, to make the payment and the receipt of the person to whom payment is ordered shall be a good discharge to the person by whom the pension or income is payable.
15. A party whose financial information is necessary to determine an amount of maintenance, shall, on the request of the Court present to the Court any financial information, and any person needed to give evidence of financial information may be summoned before the Court.
16. The Court making a maintenance order may also order that a party pay costs in such amount as the Court may determine.
17. The High Court may, on application, make an interim or final Order restraining the depletion of a person’s property that would impair or defeat the making of a maintenance order.
Order of attachment in relation to pension or income.
Financial disclosure.
Costs.
Depletion of property.
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PART III ENFORCEMENT
18. (1) The Court shall designate a person who may be a Clerk or Assistant Clerk of the Court to be the Collections Officer for each District for the purposes of this Act.
(2) The Collections Officer shall receive and make a record of all payments directed to be made to or through the Court under this Act.
(3) The person named in the maintenance order shall attend at the office of the Collections Officer during regular office hours to receive payment and must sign a receipt in the presence of the Collections Officer, who shall then pay out the amount.
19. (1) Where an amount ordered under a maintenance order to be paid, is fourteen clear days in arrears, the Court may on the application on oath of —
(a) the person to whom payment is ordered to be made; or
(b) the Collections Officer;
issue a warrant ordering the liable person to be brought before the Court to explain the reason for the arrears.
(2) If the liable person neglects or refuses to give a reasonable explanation for the arrears and to pay the sum due under the maintenance order and the costs in relation to the warrant, the Court may —
(a) order the immediate payment of the sums due if the Court is not satisfied with the explanation, or
(b) vary the maintenance order accordingly if the
Arrears.
Designation of Collections Officer.
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Court is satisfied with the explanation.
(3) If the liable person neglects or refuses without reasonable cause to pay the sum due under the maintenance order and the costs in relation to the warrant, the Court may, after considering all the evidence, commit the liable person to prison for any period not exceeding two months unless the sum due under the order and costs of commitment, are paid.
(4) Where a respondent is committed to prison subsection (9) applies.
(5) Any provision in any enactment limiting to six months the time within which summary proceedings are to be taken shall not apply to proceedings for enforcing the payment of sums under an order made under this Act but no proceedings may be taken after 6 years from the date of the order.
(6) On an application for the enforcement, variation, revocation, discharge or revival of a maintenance order under the Act the Court may waive the obligation to pay all or any part of any amount due under the order.
(7) Where on application for the enforcement of the payment of an amount payable under a maintenance order no warrant of commitment to prison is issued, the application may be renewed on the ground that the circumstances of the person to whom the application relates have changed, except where it relates to the amount waived.
(8) Where an amount under a maintenance order is payable to a person other than the Collections Officer, a warrant shall not be issued unless the person has sworn or affirmed to the fact of non-payment.
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(9) Where a person is committed to prison for default —
(a) unless the Court otherwise directs, no arrears shall accrue under the maintenance order during the time that the person is in prison; and
(b) the committal shall not operate to discharge the liability of the person to pay the sum in respect of which he or she is so committed, but at any subsequent hearing relating to the enforcement, revocation, revival, variation or discharge of the order, the Court may, if in its opinion the circumstances so warrant, waive the obligation to pay all or any part of any amount due under the order.
20. (1) If a respondent is incarcerated, other than by committal under section 19 for an offence and the Court is satisfied that the respondent has means by which payments under a maintenance order may be made, the Court may —
(a) order that, during the period of incarceration, such payments shall be made from the respondent’s income; and
(b) make an order of attachment in respect thereof.
(2) Section 14(2) and (3) applies, with any necessary modifications, to an order of attachment made under this section.
21. (1) The Court may issue a summons requiring a person against whom a maintenance order has been made or who is a party to proceedings under this Act to appear at a specified time, to show cause why an order should not be made against him prohibiting him from leaving Dominica where the Court is satisfied on oath that there is reasonable ground for believing that the person is about to leave Dominica without making adequate
Court may order payment during respondent’s incarceration for any offence.
Leaving State to evade order.
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provision during his absence for the payment of the maintenance order.
(2) For the purposes of subsection (3) the Court may, either in the first instance or subsequent to the issue of a summons, issue a warrant addressed to the Commissioner of Police and to all police officers, to apprehend a person and cause him to be brought before the Court within 24 hours of the apprehension.
(3) The Court may order a person against whom a maintenance order has been made or who is a party to proceedings under this Act not to leave Dominica where on the appearance of the person, the Court is satisfied that the person is about to leave Dominica without having made adequate provision for the payment of the Maintenance order during his absence.
(4) A person is guilty of an offence and on summary conviction is liable to a fine of two thousand dollars or to imprisonment for six months or both, if an order has been made against him under subsection (3) and he leaves or attempts to leave Dominica while the order is in force.
22. (1) A person who receives an amount of money for the maintenance of a person under this Act shall apply that amount for that purpose.
(2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine of five thousand dollars or to imprisonment for six months.
23. (1) A person who is under an obligation to make periodic payments under a maintenance order shall give notice of any change of address to the Court and the person specified in the Order.
Misapplying monies.
Change of address or employment of liable person.
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(2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine of five thousand dollars.
24. (1) A person shall not submit false information in support of any application made pursuant to this Act.
(2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine of five thousand dollars.
(3) Where on hearing an application made under this Act, the Court determines that any information submitted in support of an application, or in pursuance of any order made under this Act is false the Court may —
(a) dismiss the application; or
(b) order a person to resubmit the information with supporting documentation.
PART IV MAINTENANCE AGREEMENTS
25. (1) Subject to section 27 spouses or two persons in contemplation of their marriage to each other or of cohabiting may, for the purpose of facilitating the settlement of their support rights and obligations, make such maintenance agreement as they think fit.
(2) For the purposes of this Part, a maintenance agreement means an agreement that —
(a) makes provision in respect of the support rights and obligations of the parties with respect to each other or any child that either party has an obligation to maintain under the Maintenance of Children
False statements.
Agreements in respect of maintenance.
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Act, 2023; and
(b) includes provisions in respect of —
(i) financial matters;
(ii) the right to direct the education and moral training of their children; or
(iii) any other matter in the settlement of the support obligations of the parties, including an agreement that varies an earlier maintenance agreement.
(3) Each party to a maintenance agreement shall obtain independent legal advice before signing the agreement and the legal adviser shall certify that the implications of the agreement have been explained to the person obtaining the advice.
(4) Every maintenance agreement shall be in writing signed by both parties whose signatures shall —
(a) if signed in Dominica, be witnessed by a Justice of the Peace, Commissioner for Oaths or an Attorney-at- Law;
(b) if signed in a country or State other than Dominica, be witnessed by —
(i) a person having authority by the law of such country or State to administer an oath in that country or State; or
(iii) a Dominican or British High Commissioner or Ambassador, as the case may be, or a Dominican or British Envoy, Minister, Charge d’Affaires, Secretary of Embassy or Legation or any
Act No. 5 of 2023.
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Dominican or British Consul-General or Consul or Vice-Consul or Acting Consul or Consul Agent exercising his functions in that country or State.
26. (1) Subject to subsection (3), a maintenance agreement shall be unenforceable in any case where —
(a) there is non-compliance with section 25 (3) or (4); or
(b) the Court is satisfied that it would be unjust to give effect to the agreement.
(2) Notwithstanding subsection (1)(a), the Court shall have jurisdiction to enquire into any agreement made under section 25(1) and may, in any proceedings under this Act or on an application made for the purpose, declare that the agreement shall have effect in whole or in part or for any particular purpose if it is satisfied that the non-compliance mentioned in that subsection has not materially prejudiced the interests of a party to the agreement.
(3) In deciding under subsection (1)(b) whether it would be unjust to give effect to an agreement, the Court shall have regard to —
(a) the provisions of the agreement;
(b) the time that has elapsed since the agreement was made;
(c) whether, in light of the circumstances existing at the time the agreement was made, the agreement is unfair or unreasonable;
Agreement unenforceable.
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(d) whether any changes in circumstances since the agreement was made (whether or not such changes were contemplated by the parties) render the agreement unfair or unreasonable;
(e) any other matter which it considers relevant to any proceedings.
(4) Nothing in this section shall limit or affect the capacity of spouses to agree to acquire or hold any property jointly or in common, whether or not with any other person, and whether legally or beneficially.
(5) A maintenance agreement ceases to be in force on the death of a party to the agreement, unless the agreement otherwise provides.
(6) Where in relation to a maintenance agreement the Court is satisfied that the arrangements in respect of a child that either party has an obligation to maintain under the Maintenance of Children Act, 2023 are —
(a) not proper; or
(b) no longer adequate in the circumstances, the Court may make such order under Part III as it thinks necessary to secure the proper support of the child.
(7) It is hereby declared that a maintenance agreement made by persons who cohabit shall not be void as against public policy.
No.5 of 2023.
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27. Any maintenance agreement that is intended to defeat any creditor of either party to the agreement shall be void.
PART V MISCELLANEOUS
28. (1) An appeal shall lie in respect of an Order under this Act to the Court of Appeal.
(2) The Court of Appeal on hearing an appeal may —
(a) uphold, reverse or modify the decision of the Court;
(b) remit the matter to the Court for rehearing generally; or
(c) make such order as the Court of Appeal thinks just.
29. The Court shall ensure that the amounts received under maintenance orders are kept separate from any other amounts in the Court’s control.
30. (1) The Collections Officer shall remit any amounts received under the Act which remain unclaimed after six months of their receipt together with a copy of the relevant accounting records and deposit voucher to the Accountant-General.
(2) A person who is entitled to receive an amount under a maintenance order that has been remitted under subsection (1) may claim that amount by making a request to the Collections Officer.
(3) On receipt of a request under subsection (2), the Collections Officer shall issue a voucher headed “Unclaimed Amount”, setting out the particulars of the unclaimed amount and
Appeal.
Payments under maintenance orders to be kept separate.
Unclaimed amounts.
Agreement to defeat creditors.
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forward to the Accountant General.
(4) Every year the Court shall publish a list of any unclaimed amounts that have remained unclaimed for one year.
31. The Minister may make Regulations and prescribe forms for carrying into effect the provisions of this Act.
32. (1) The Maintenance Act is repealed.
(2) An order or other thing made, done or having effect under or for the purposes of the former Act and in force immediately before the commencement of this Act shall be deemed to have been made or done under this Act.
(3) An application made under the former Act and pending immediately before the commencement of this Act shall be continued to conclusion as if the written law under which it was brought had not been repealed.
(4) In this section “former Act” means the Maintenance Act.
Passed in the House of Assembley this 25th day of April, 2023.
DANIEL JAMES Clerk of the House of Assembly
Regulations.
Repeal and transitional provisions. Chap. 35:61.
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