In a landmark ruling yesterday, acting Chief Justice Roxane George SC said that men can now apply for matrimonial benefits on the dissolution of a marriage as she found their constitutional rights were breached by the Matri-monial Causes Act which only made provision for women to be maintained by their former spouses.
The case involved a man who wanted to apply for matrimonial benefits in his pending divorce matter but his lawyer Tamara M. Evelyn Khan found that Section 14 of the Matrimonial Causes Act, Chapter 45:02 disallowed him from proceeding.
So, through his lawyer he challenged the section on the basis that it breached his constitutional rights.
According to the orders seen by this newspaper, the Chief Justice named section 14 of the Matrimonial Causes Act as discriminatory and being in violation of Article 149 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 former wives to maintain their former husbands.
The acting Chief Justice said that section does not secure to the applicant equal protection and benefit of the law and is therefore “unconstitutional as being in violation of Article 149D of the Constitution of Guyana…”
Until the National Assembly makes adequate provision, the CJ said that the Act is now modified to permit application by either wife or husband for payment of maintenance.
While no costs were awarded, it was ruled that the man is now entitled to apply for maintenance from his wife.
The man’s wife had filed for divorce, which he did not challenge and the matter is still ongoing. However, he had instructed his lawyer to apply for maintenance. It was then Evelyn Khan realised that the Act barred her client for no other reason than the fact that he was a man.
In her argument before the court Evelyn Khan pointed our that Article 8 of the Constitution of Guyana “is the supreme law of Guyana and, if any law is inconsistent with it, the other law shall, to the extent of the inconsistency, be void.”
It was pointed out that Section 14 of the Matrimonial Causes Act was indeed inconsistent with the guaranteed protections contained in the fundamental rights and freedoms provisions of the Constitution, specifically Articles 149 and 149D.
“The provisions of Section 14, secure what can be described as a tremendous benefit to a wife. It does not allow the same benefit to accrue to the husband. He is simply disallowed, as is the Applicant in the instant matter, from seeking alimony/maintenance. The necessary questions of discrimination and equality become relevant in this context,” the lawyer had said in her arguments.
It was pointed out as well that section 149 of the Constitution guarantees that laws and their provisions shall not be discriminatory in themselves or their effect. Section 14, the lawyer argued, infringes on the guarantees under Section 149 of the Constitution with no justifiable reason. It was noted as well the applicant being a man cannot be a reason to deprive him of the benefit of the application of alimony/maintenance.
“Such a restriction certainly also offends against the full enjoyment of the fundamental right of protection from discrimination, equality before the law and equal protection and benefit of the law,” Evelyn Khan argued.
Ultimately the lawyer sought a declaration that Section 14 is void and be amended to allow her client to apply for maintenance.
Solicitor General Nigel Hawke represented the Attorney General’s Chambers in the matter.
