FASHION

KNOW YOUR RIGHTS WITH
BERNARD GEORGES
In the real world of this problem, however, this love-in with the law
translates into the following. Nobody will blame you for causing the
marriage to break down because of your infidelity. This is a neutral factor.
You will neither lose the rights you would otherwise have in the house,
nor will you lose custody of the children. Having got custody of the
children, you will get the maintenance they need for their upkeep, subject
to the requirements of your ex-husband. He may have a second family too
for whom he must care. Since the rule of thumb is to keep the two families
in roughly the same position as they were prior to the breakdown, the
level of maintenance will be set to achieve this purpose. But, this is not
really the problem here because you and your ex have agreed to all that.
The problem is that he has cut the maintenance by 2/3. What can you do?
You will note that I have used the word ‘maintenance’ and not ‘alimony’.
The reason for this is that maintenance is generally used in relation to
money paid for children and alimony for an ex-spouse.
“Our law regarding marriage,
divorce, custody and maintenance
is fair. As a country, we are right
up there with the best and most
advanced countries in the world.”
My ex-husband and I divorced three years ago
following my infidelity. Despite the circumstances,
he left me with the house, primary custody of our
three children and a more than generous monthly
alimony. Six months ago a question of paternity
came up and results proved that two out of our
three kids are not biologically his. He has decided
to cut the alimony to 1/3. The children attend
private schools and our lifestyle has always been
more than just ‘modest’. This financial change has
completely turned our lives upside down. Can I
fight him on this?
Gosh, you really do not make things easy for yourself, do you? Here’s my
advice: let sleeping dogs lie. Don’t even think of fighting your ex-husband.
You were responsible for the marriage failing. You must have known that
the two children weren’t his. You have the house and some alimony. Count
your blessings and make do with what you have.
This short advice may appear rough, brutal even, but it is the kindest way
of giving it. Sometimes, lawyers are stuck and cannot find any advice to
give which will please the client on the other side of their desk. This is one
case. And here’s why.
Our law regarding marriage, divorce, custody and maintenance is fair.
As a country, we are right up there with the best and most advanced
countries in the world. Our family law is really up to date. Parties are no
longer blamed for divorce, irrespective of actual blameworthiness. Courts
can transfer matrimonial property from the legal owner to the nonowner
following marital breakdown. Shares in jointly-owned property
can be adjusted. Custody is granted to one parent or another on the sole
basis of what is best for the child. Money and means do not come into
it. Maintenance payments seek to put the parties as close as possible in
the same position they were prior to the breakdown. In all these things,
Seychelles holds its own with the most developed countries. It is a system
of which we can be justifiably proud.
The only reasons that a parent has to pay maintenance for a child are that
that child is his or hers, the child is a minor or still undergoing education,
or disabled, and that child is not living with him or her. There is no other
legal obligation to pay maintenance for a child. There is also no real legal
obligation for a person to pay maintenance for another person’s child.
There may be a moral reason for doing so – the children may not have
known any other father, the ‘father’ may have treated them as his own
and led them to believe that he would always be there for them so that in
legal parlance he would be estopped (prevented) from saying otherwise
etc. But when push comes to shove there is really no compelling legal
reason for forcing a person to maintain a child which is not his, unless
he has contractually agreed to do so. In this case it is clear that your ex
believed the children to be his and treated them as his, to the extent of
paying maintenance for them. It is only when the paternity test proved
otherwise that he changed. It cannot be argued that he knew all along
and still decided to maintain them. Had that been the case, it might be
said that he should not be allowed to decide otherwise now. But, on the
facts here, this is not the case. He has clearly withdrawn maintenance for
the two children because he feels that you have not been upfront with
him. He has a point.
But, what about the children, you may ask? They are innocent. Why should
they be punished? Why indeed? But, by the same token, why should
somebody who looked after them as a father when he had no legal
obligation to do so continue when he realises that he is not their father?
Plus, they must have a biological father somewhere. Unless that person is
deceased, abroad, or destitute, he is the person who has the duty in law
to maintain his children, not your ex. So, it is to him that you must look for
maintenance to support the life to which your children are accustomed.
If he cannot pay, then you will have to face the unhappy prospect of a
reduced lifestyle. You cannot count on your ex legally to maintain children
who are not his, no matter how terribly that will affect you as a family, or
the two children who are not his.
I am sorry, but this is not a case with a happy ending. Rather, it is a case
which reminds us of the old legal adage: duralex sed lex – the law is tough,
but it’s the law.
Educated at Seychelles College and Cambridge University,
Bernard Georges has two Masters Degrees – in the law of divorce
and in canon law, the law of the church. He is best known as a
lawyer, having been in private practice for over 30 years. Over
the past ten years, he has also been a member of the National
Assembly. He is currently a part-time lecturer in law at the
University of Seychelles, where he teaches Constitutional Law.
And, he is a budding writer. He has written and published two
novels to date and he promises many more books on history, law
and Seychelles.
29 MARCH 2015 | POTPOURRI