Due to a landmark High Court decision, men in Guyana can now apply to the High Court for their former wives to pay them maintenance and or alimony upon the dissolution or nullification of their marriage, and or while they wait for the marriage to be dissolved or nullified. Previously, only women could make such an application.
This new reality is the result of a decision of the High Court of the Supreme Court of Guyana in a recent decision in Application by Sam David Aaron 2023-HC-DEM-FDA-244. In that case, the court was asked to determine whether section 14 of the Matrimonial Causes Act, Cap 45:02, Laws of Guyana, which (as written previously) allowed women to ask a court to compel their husbands to provide alimony or maintenance to them in certain circumstances, violated his fundamental rights provided for under the Constitution of the Cooperative Republic of Guyana because it only allowed women to apply for maintenance and or alimony against their husbands.
Alimony refers to financial support one spouse is ordered to pay to the other during separation or following divorce, while maintenance refers to financial support paid by one spouse to the other in circumstances where they are unable to adequately support themselves.
Aaron had been served divorce proceedings by his wife, and though he did not contend or oppose the divorce, he did choose to make an application for financial relief and division of property. When the application for financial relief was heard, it was noted that his application was at risk of failing because section 14 of the Matrimonial Causes Act expressly said that maintenance or alimony could only be paid by husbands to wives. Consequently, Aaron filed an action in the High Court challenging the constitutionality of restricting alimony and maintenance to women alone.
Specifically, he asked the court for: a declaration that section 14 of the Matrimonial Causes Act is contrary to his right to protection from discrimination under Article 149 of the Constitution of Guyana; a declaration that section 14 of the Matrimonial Causes Act is contrary to his right to equality of persons before the law under Article 149D of the Constitution of Guyana; and declarations that he is entitled to apply for maintenance under Articles 149 and 149D of the Constitution of Guyana.
Section 14 (titled Maintenance and alimony in the marginal note) provides that when a court dissolves or nullifies a marriage, the court may also make an order for the husband to give the wife a gross sum of money, or an annual sum of money for a certain period shorter than, not beyond her death. In deciding the amount the husband would give the woman, the court can consider the woman’s financial means, and the working and financial situation of the husband (see section 14 (1) of the Matrimonial Causes Act). In essence, this provision allows a wife to ask the court to compel her soon to be ex-husband to give her a certain amount of money after their marriage is dissolved or nullified for her upkeep. When deciding whether to make such an order, or how much she should receive, the court would consider various things, including the wife’s ability to maintain herself, and the amount of money the husband makes. To settle these matters, the Registrar would be asked to approve a proper deed or instrument to be executed by all the necessary parties. However, if there is a delay in determining whether, how frequently, and or how much alimony should be paid, the court may suspend dissolving or nullifying the marriage until these things are resolved.
If there is such a delay in the nullification or dissolution of the marriage, and while the spouses are still married, the High Court, if it thinks fit, may make an order against the husband for him to, during their joint lives, provide a monthly or weekly sum for her maintenance and support. If the husband becomes unable to pay this amount after it has been decided by the court, the court may cancel or modify the payment according to the husband’s financial position. However, if the husband’s financial position improves, the court may increase the sum to be paid to his wife.
Now, Article 149 (1) (a) of the Constitution of Guyana prevents the state from making any law which is discriminatory itself, or in effect, while Article 149 (2) provides that no person shall be discriminated against based on their sex. Article 149D (1) says that a person shall not be denied equality before the law or equal protection and benefit of the law. Article 149D (3) goes on to say that equality includes the full and equal enjoyment of all rights and freedoms guaranteed by or under this Constitution or any other law.
The State had argued that section 14 of the Matrimonial Causes Act was not discriminatory because Article 149 (3) (d) provides that the fundamental right to protection against discrimination does not apply to issues of adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law. It was, the State argued, an exception to the protections under Article 149 of the Constitution of Guyana.
The High Court, however, said, among other things, that the issue of alimony in section 14 of the Matrimonial Causes Act was not a law that makes provision for marriage, as it pertains to a matter after the dissolution or nullification of marriage
Ultimately, the court declared that “section 14 of the Matrimonial Causes Act is discriminatory on the basis of sex and gender and is therefore unconstitutional as 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 women to pay a gross or annual sum of money to or maintain their former husbands.”
The court also found that “section 14 of the Matrimonial Causes Act 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, to the extent that 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.”
Noting, however that these findings by themselves would not necessarily allow Aaron to claim alimony upon the dissolution of his marriage, the court, until the National Assembly amends the provision, modified section 14 of the Matrimonial Causes Act to permit applications by either a husband or a wife for payment of a gross or annual sum or maintenance, thereby bringing section 14 into compliance with Articles 149 and 149D of the Constitution of Guyana.
As a result, Aaron, or any man in a similar situation, is now entitled to apply for maintenance from his spouse, although it does not mean that the court will indeed grant his application. This decision and its implications is likely to be controversial in Guyana, a yet highly traditional country in which men looking to women for financial support, yet alone maintenance, whether during or after the marriage, is frowned upon by men and women alike. Already, various social media platforms are abuzz with people sharing their support, but more frequently, their disapproval. This situation is not, however, new. Many countries, including the United States and Canada have long allowed husbands to claim alimony or maintenance from their wives. So, it seems that Guyana is now catching up, albeit slowly.
Mr Chevy Devonish is a Senior Legal Advisor with the Attorney General’s Chambers and Ministry of Legal Affairs, and a Part-time Lecturer at the University of Guyana. You can contact Mr Devonish at chevydevonish@gmail.com.
