Maintenance Law in Sri Lanka: A Practical Guide for Spouses and Parents

When a marriage breaks down or parents begin living separately, one of the first practical questions is often: Who will pay for the children, and can one spouse claim financial support from the other?

In Sri Lanka, maintenance is principally governed by the Maintenance Act No. 37 of 1999. The law provides a relatively direct procedure through the Magistrate’s Court to obtain financial support for a spouse, child, certain adult children and disabled children.Importantly, maintenance is not intended to punish one party to a relationship. Its purpose is to ensure that a person who has a legal responsibility to provide support does not simply avoid that responsibility.

Who Can Claim Maintenance?

The Maintenance Act provides for several different categories of persons.

1. Maintenance for Children

Where a parent who has sufficient means neglects or refuses to maintain a child who is unable to maintain himself or herself, the Magistrate may order that parent to pay a monthly maintenance allowance.

For the purposes of the Act, a child generally means a person who has not reached the age of 18.

The responsibility is not necessarily limited to fathers. The Court may consider the financial position of both parents, and the law allows an appropriate order to be made against one or both parents.

The central consideration is the welfare and financial needs of the child.

2. Maintenance for Children Over 18

A common misunderstanding is that maintenance automatically ends once a child turns 18.

Sri Lankan law also recognises an “adult offspring”, meaning an offspring who is 18 years or older but under 25 years of age.

Accordingly, depending on the circumstances, an adult child who is unable to maintain himself or herself may still be entitled to maintenance.

This can be particularly relevant where a young adult is still studying, undergoing professional training or is otherwise genuinely unable to support himself or herself.

3. Maintenance for a Disabled Child

The law also protects a disabled offspring who, because of a physical or mental disability, is incapable of earning a livelihood or adequately supporting himself or herself.

Unlike the ordinary definition of a child or adult offspring, a disabled offspring may fall within the protection of the Act regardless of age, provided the statutory requirements are satisfied.

4. Maintenance for a Husband or Wife

Maintenance is not legally restricted to wives.

The Act refers to a spouse. Therefore, in an appropriate case, either a husband or a wife may seek maintenance.

However, simply being married does not automatically create an entitlement to a maintenance order.

The Court must consider whether:

• the other spouse has sufficient means;
• that spouse has neglected or unreasonably refused to provide maintenance; and
• the applicant spouse is unable to maintain himself or herself.

The Court will also look at the income, means and circumstances of the parties.

Can a Working Wife or Husband Claim Maintenance?

Employment by itself does not necessarily answer the question.

The important issue is the actual financial position of the applicant spouse.

For example, a person may have a modest income while facing substantial unavoidable expenses. On the other hand, a spouse with a substantial independent income and sufficient resources may find it difficult to establish that he or she is unable to maintain himself or herself.

Therefore, maintenance cases should not be approached on the simplistic basis that:

“She has a job, so she cannot claim maintenance.”

Nor is it correct to assume that marriage automatically entitles one spouse to receive money from the other.

Each case depends on its own evidence.

How Much Maintenance Can Be Claimed for a Child?

There is no fixed percentage or standard amount prescribed by the Maintenance Act.

A Court does not simply decide that a parent must pay, for example, 20% or 30% of his or her salary.

In determining an appropriate amount, the Court may consider the income of the parents together with the means and circumstances of the child.

In practice, relevant expenses can include matters such as:

food and day-to-day living expenses;

school fees;

• tuition and educational expenses;
• books, stationery and technology required for education;
• transport;
• accommodation;
• clothing;
• medical and dental expenses;
• extracurricular activities; and
• other reasonable expenses connected with the child’s circumstances.

The standard of living and financial circumstances of the family may also become relevant when assessing what is reasonable.

A maintenance case involving a child attending a private international school, for example, may involve very different expenses from another case.

Therefore, proper evidence of expenditure is extremely important.

What If the Other Parent Says He or She Has No Money?

The Court is not necessarily restricted to looking only at the salary stated on a payslip.

The financial means and circumstances of the parties may become relevant.

Depending on the case, evidence concerning employment, business interests, assets, lifestyle, banking transactions and other sources of income may assist the Court in determining the true financial position.

Similarly, a person against whom maintenance is sought is entitled to place evidence before Court regarding genuine financial commitments and his or her actual ability to pay.

Maintenance should therefore be determined on evidence rather than assumptions.

Can Interim Maintenance Be Obtained While the Case Is Pending?

Yes.

Maintenance proceedings can take time to conclude, particularly where the parties dispute income, expenses or other facts.

The Maintenance Act gives the Magistrate discretion to make an interim maintenance order while the main application is pending.

This is particularly important in cases involving children because school fees, food, medical expenses and other necessities cannot simply be postponed until litigation is concluded.

An interim order remains operative until the Court makes its final order, unless it is varied or revoked earlier.

From What Date Is Maintenance Payable?

Where a final maintenance order is made, the Act generally provides for the maintenance allowance to be payable from the date on which the application was made, unless the Magistrate, for good reasons recorded, directs otherwise.

This can be significant where proceedings have continued for a considerable period.

Accordingly, delay in determining a case does not necessarily mean that the applicant loses the maintenance relating to the period during which the case was pending.

Can an Existing Maintenance Order Be Increased?

Yes.

A maintenance order is not necessarily fixed forever.

Circumstances change.

A child who was five years old when an order was first made may later have substantially greater educational and living expenses. School fees may increase. Medical circumstances may change. A parent’s income may increase or decrease.

The Maintenance Act permits a person receiving maintenance, as well as a person ordered to pay maintenance, to apply to Court where there has been a change in circumstances.

The Court may then increase, reduce or, where legally appropriate, cancel the existing order.

Therefore, an old maintenance order does not necessarily prevent a fresh application seeking an adjustment when circumstances have materially changed.

What Happens If Maintenance Is Not Paid?

A maintenance order is a Court order. It should not be ignored.

The Act contains enforcement mechanisms where a person fails to comply with an order.

Depending on the circumstances, the Magistrate may take steps to recover arrears and may impose imprisonment in relation to defaults as permitted by the Act.

Where maintenance has remained unpaid for more than two months, the Act also provides a procedure through which an attachment of salary order may be made in an appropriate case, requiring an employer to deduct the amount ordered by Court from the respondent’s salary.

Accordingly, deliberately refusing to comply with a maintenance order can have serious consequences.

Where Is a Maintenance Case Filed?

Maintenance applications are generally made in the Magistrate’s Court.

The Act allows an application to be made in the Magistrate’s Court having jurisdiction over the area where the applicant, the person for whom maintenance is sought, or the person against whom the application is made resides.

The application is supported by an affidavit setting out the relevant facts.

Where the Magistrate is satisfied that there is a sufficient basis to proceed, summons may be issued on the respondent, who will then have the opportunity to appear and place his or her position before Court.

Maintenance and Divorce Are Different Issues

Another important point is that maintenance proceedings and divorce proceedings are not the same thing.

A person does not necessarily have to wait until a divorce case is concluded before addressing immediate financial support.

Similarly, questions relating to custody, access, divorce, matrimonial property and maintenance may involve different legal principles and different forms of relief.

A person facing a family dispute should therefore obtain advice on the overall legal position rather than treating every issue as part of a single proceeding.

Every Maintenance Case Is Different

There is no mathematical formula that determines maintenance in every family.

A Court must balance several considerations, including:

the needs of the person seeking maintenance, the financial means of the person from whom maintenance is sought, the circumstances of the family, and the evidence placed before Court.

For parents, the most important principle should remain the wellbeing of the child.

For spouses, the Court must determine whether the statutory requirements for maintenance have actually been established.

Proper preparation, accurate evidence of income and expenditure, and early legal advice can therefore be extremely important.

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Chathuranga Bandara
Attorneys-at-Law