Husband's duty to provide for children is paramount; maintenance obligations and the division of matrimonial assets are governed by statutory provisions.

[1] This is a sad story of a marriage that failed. It is sad because no divorce would leave the children of the marriage unaffected. The parties have 2 children, a girl and a boy. Parties cited irreconcilable differences that had led them to conclude that the marriage had irretrievably broken down. They went for a Judicial Separation which order was given in 2008 when the children were 8 and 4. They wanted their children to be least affected by what the adults have failed where their marriage was concerned. How true it is the saying that the best thing parents can do for their children is to love each other.

[2] They still stayed in the matrimonial home together until the Respondent Husband (RH) moved out in early 2010, after coming to the conclusion that nothing was going to work where their marriage was concerned. To add to the stress of the marriage the RH was diagnosed as been HIV+; he said in 2005 whereas the Petitioner Wife (PW) said she only knew about it in 2012.

[3] The PW has now filed a Divorce Petition and added a lady that the RH intended to marry as the Co-Respondent (CoR). The PW claimed for the usual order of a divorce and care, control and custody of the children as well as maintenance for the children and herself and also for division of matrimonial assets and finally damages against the CoR.

Maintenance For The 2 Children

[4] It is the duty of the father to provide for the children and to maintain the standard living of the children. In Sivajothi K Suppiah v. Kunathasan Chelliah , it was observed as follows:

"Maintenance signify any form of material provision that will enable an adult to live a normal life and a child to be brought up properly. Thus maintenance cannot mean only mere subsistence, ie the food she puts in her mouth but also means the clothes on her back, the house in which she lives and the money which she has to have in her pocket, all of which vary according to the means of the man who leaves a wife behind. Moreover, it is settled law that it is the duty of the father to maintain the standard of living the children had enjoyed in the past, ie during the existence of the marriage."

[Emphasis added]

[5] The relevant provisions with respect to maintenance for a child is governed by ss 92 and 93 of the Law Reform (Marriage and Divorce) Act 1976 ("LRA") which provide as follows:

"92. Duty to maintain children

Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.

93. Power for court to order maintenance for children:

(1) The court may at anytime order a man to pay maintenance for the benefit of his child:

(a) If he has refused or neglected reasonably to provide for the child:

(b) If he has deserted his wife and the child is in her charge:

(c) During the pendency of any matrimonial proceedings; or

(d) When making or subsequent to the making of an order placing the child in the custody of any other person.

(2) The court shall have the corresponding power to order a woman to pay or contribute towards the maintenance of her child where it is satisfied that havin