When Parents part ways, the principal concerns that arise are how each party will retain contact with their children, and continue to offer mutual support in their education, health and financial exigences. Both parties are bound to contribute towards the needs of the family, each in proportion to his or her means and of his or her ability to work. When making these considerations, the best interests of the children need to be given precedence.
The right of access, also commonly known as visitation is a fundamental human right, which emanates from exercising parental authority over one's children. Whereas maintenance payments, which cover food, clothing, and habitation, as well as health and education expenses, is an obligation imposed on each parent.
MAINTENANCE
Parents are legally bound to provide maintenance for their children until their children reach majority age.1 However, if their children are students under the age of twenty-three who participate in full-time, education training or learning, this obligation persists until their children either reach twenty-three years of age or start working on a full-time basis. In the event, children have a disability, and it is not reasonably possible for the children to maintain themselves, the obligation to pay adequate maintenance persists without limitation.
Maintenance is due in proportion to the want of the person claiming it, and the means of the person liable thereto. The law does not provide a set computation to determine the amount of maintenance due, however, for the Court to determine a request for maintenance, the party claiming maintenance must provide a prospectus indicating the expenses incurred for their children, which must be corroborated with the presentation of receipts. This would assist the Court in understanding the lifestyle and upbringing of the children concerned.2 Following this, an estimation is made of the means of the person bound to supply maintenance, by considering the earnings received from the exercise of any profession, art or trade, any salary or pension and to the fruits of any movable or immovable property and as well as any income accruing under a trust.
In the event of personal separation, or natural parents parting ways, the general arrangement is for one party to take and maintain the children in his or her residence, whereas the other party provides monetary maintenance. When maintenance is being paid for children, the law specifies that apart from a monetary allowance which covers day-to-day needs, the party supplying maintenance must also contribute towards the health and education expenses incurred. Generally, the party supplying maintenance issues monthly payments. Whereas health and education expenses can either be factored in with the monthly allowance or such expenses are equally split between the parties each time any expense concerning the health and education of the children is incurred. The latter arrangement is usually opted for when effective communication is maintained between the parents.
It is important to note that where there is a supervening change in the means of the party liable to supply maintenance, or the needs of the family, the Court may order that such maintenance is varied or stopped. In such instances, the party aggrieved must file an application in Court, and any changes can only be affected upon the Court issuing a revised decree, determining new mode of payment.
the right to visitation
Having access to one's children is a fundamental human right and should be exercised even if the care and custody of the children is assigned to one parent. There are different modes of access; in an amicable setting, visitation is generally free and ample, however it is recommended that the parents agree on a schedule. This schedule will provide structure and a routine for the minor children in question, as well as serve as a fall-back position in case, the relationship between the parents deteriorates. In instances where the parents are not on good terms, the Court may order that visitation is supervised, this entails that the parent exercising access, visits the children in a monitored environment and in the presence of social workers. The Court may also order as a form of visitation, virtual communication between a parent and their children.
In litigious settings, the time, place and manner with which parents have access to their children is fixed by the Court, according to the circumstances of the case. If the parent granted access, fails to exercise his right without reasonable cause, the Court may withdraw this right. Whereas, in more serious instances, the Court may also entirely forbid access if it is found to be detrimental to the children's welfare, or to the welfare of anyone of the parents. When the Court gives directions concerning custody and access of the children, paramount consideration is given to the children's welfare.
When commenting on the right of access, the Family Court explained that the only instance where the Court is bound to deny access is in cases where it would be faced with expert recommendations to do so, or due to the particular circumstances of the case, it would be amply clear that it is not in the best interest of the children for access to continue to be exercised. However, following this statement, the Court clarified that it has no interest to hinder the possibility of parents building a relationship with their children, unless there are valid and legitimate reasons to do so in the children's supreme interest.3
CONCLUDING REMARKS
In conclusion, both the right of visitation and the obligation to pay maintenance are crucial aspects in children's upbringing; and must be taken seriously. If an amicable settlement is not reached between the parents during mediation stage, such matters are determined by the Court and may only be changed with Court authorisation. It is also important to note that depriving visitation because maintenance is not being paid, or vice-versa is deplorable at law, and can never be used as a justification for one's shortcomings in contentious disputes.
Footnotes
1 Eighteen years of age.
2 Civil Court (Family Section) GM v. SS, Application number 154/2020 AGV, decided on the 23rd May 2024;
Meta si tratta manteniment, il-Qorti fl-aħħar u l-iktar sentenzi riċenti tagħha, u ċjoe' dawk fl-ismijiet Ottilie Micallef pro et noe vs Jason Joseph Mifsud u Romina Veneziani noe vs Dr Marc Sant, għalmet illi: "Madanakollu l-grad ta' prova neċessarja f'kawża fejn si tratta talba għal manteniment minn għand dak il-ġenitur li ma jkunx preżenti sa mit-twelid tal-minuri, huwa tali fejn ikun biżżejjed għal dik il-parti li tagħmel it-talba għal ħlas ta' manteniment illi tippreżenta prospett li jindika approssimattiv tal-infiq ta' flus fuq il-minuri li għandu jkun ikkorraborat b'numru sostanzjali ta' rċevuti, liema rcevutigħandhom jagħtu indikazzjoni tal-ħajja li dik il-parti tkun qiegħda tagħti lil uliedha ...
3 Civil Court (Family Section) GM v. SS, Application number 154/2020 AGV, decided on the 23rd May 2024; Quoted a judgement in the names, 'Romina Spagnol v. Thomas, where the court held; "Il-Qorti
tfakkar illi d-dritt għall-aċċess huwa wieħed mid-drittijiet fundamentali tal-ġenituri, liema dritt jemanixxi mis-setgħa ta' ġenitur. Għaldaqstant id-drittgħall-aċċess għandu jitgawda mill-ġenitur u dan anke jekk il-kura u kustodja tiġi assenjata lil wieħed mill-ġenituri. L-unika eċċezzjoni fejn il-Qorti tkun kostretta li tordna n-nuqqas ta' aċċess huwa f'kaz li jkun hemm rakkomandazzjoni minn espert fil-qasam, jew minħabba fattispeċji partikolari tal-kaz li jkollha quddiemha l-Qorti fejn ikun jidher b'mod lampanti li ma, jkunx fl-interess suprem tal-minuri li jinzamm tali aċċess. Il-Qorti tirribadixxi illi ma għandha l-ebda interess li tisfratta l-possibbilita' li ġenitur jibni relazzjoni ma' uliedu, salv jekk ikun hemm raġunijiet validi u leġittimi, u dan f'ġieħ l-interess suprem tal-minuri".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.