5. What kind of maintenance order (or financially related order) is the Court empowered to make?
- Maintenance pending suit (while application for divorce is in process) – This order also called “interim maintenance”. As its name suggests, this order is for the provision of maintenance pending the grant of final divorce decree. This is because very often there would be an interim period or a time gap between the filing of petition for divorce and the court hearing and the grant of the final divorce decree. Such kind of order cannot last beyond the final divorce decree. It will terminate in any event upon the death of either party. This order is subject to variation and the amount so ordered to be paid is not necessarily any indication of the amount which may be order to be paid upon the granting of the decree.
- Periodical payments order – This is an order for maintenance which is to be paid after the final decree. The Court is empowered to limit the duration of the maintenance to a specified time, subject to the needs of the payee (the receiving party) and the circumstances of each case. This kind of order will normally terminate upon the death of either party or the remarriage of the payee. However, the Court may limit the duration of the order to an earlier time. Also, if there is any subsequent change of circumstances on the part of either payee or payer, this order can be varied.
- Secured periodical payments order – secured periodical payments are ordered where there is reason to believe that the party ordered to make the payment will not pay them. As its name suggests, these are maintenance payments which are secured or guaranteed. However, it is pertinent to note that the secured provision is not to be a general charge on all assets. The Court is obliged to specify the assets on which security is to be given. The payments will continue until the death of the payee (not the payer, the party making payment), or the remarriage of payee, or an earlier date as specified by the Court. This order will only be imposed if there are reasonable grounds to believe that the common periodical payments order will be ineffective to carry out in practice and there are sufficient funds or assets of the payer whereby the payments can be secured e.g. where the payer has sufficient means but has a history of failing to abide by order so made (as in the interim maintenance order), poor record of financial irresponsibility, or has vowed to resist payment of maintenance if so ordered.
- Lump Sum Order – It is an order for the payment of a capital sum in the case when the payee is entitled to one lump sum only. This order is closely related to the 'clean break' sought by a claimant. The capital sum payable under such order can be paid in various instalments. However, this order cannot be varied subsequently, because it is an ‘once and for all' order that is intended to create finality in litigation. The amount paid out is not recoverable in any event.
- Property Adjustment Order – It is an order whereby one party is ordered to transfer to another his or her interest in property such as real properties, stocks, or car, etc. This kind of order, once made, cannot be varied. Situations under which property adjustment order will be made is when, for example, there is a need to allow each spouse a share in the capital value of the family assets, especially the matrimonial home.
- Settlement of property order – This is an order requiring one party to transfer specified property for it to be held on trust. The trustee(s) will hold the property for the benefit of the beneficiary, (usually either the other party or the child of the marriage) in accordance with the terms of a trust deed. This type of order is not common and factors such as the child’s welfare, the income, earning capacity, property and other financial resources which each parent has or likely to have in the foreseeable future will be taken into account.
- Variation of settlement order – Where a trust (which is sometimes called a settlement) is already in existence, the Court can vary the terms of that trust or settlement. Again, such an order is not common.