FAMILY SUPPORT AND MAINTENANCE: EMERGING ISSUES IN SOME DEVELOPING COUNTRIES WITH MIXED JURISDICTIONS

• Date: 01 July 2006
• Published date: 01 July 2006
• DOI: http://doi.org/10.1111/j.1744-1617.2006.00094.x
• Author: Savitri Goonesekere

FAMILY COURT REVIEW, Vol. 44 No. 3, July 2006 361–375

© 2006 Association of Family and Conciliation Courts

Blackwell Publishing, Ltd.Oxford, UKFCREFamily Court Review1531-2445© 2006 Association of Family and Conciliation CourtsApril 2006443Original ArticleGoonesekere / FAMILY SUPPORT AND MAINTENANCE

FAMILY COURT REVIEW

E-mail: cenwor@slt.lkMailing Address 304/5 Park Road, Colombo 5, Sri Lanka.

FAMILY SUPPORT AND MAINTENANCE: EMERGING ISSUES

IN SOME DEVELOPING COUNTRIES WITH MIXED

JURISDICTIONS

Savitri Goonesekere

Family support and maintenance laws in several developing countries with mixed legal traditions derived from

colonial and local laws are based on a litigation model. This model often fails to give adequate legal relief in

the socioeconomic context of poverty. The situation is made worse by inequitable and gender-biased inheritance

laws. This article will use examples mainly from countries in South Asia and Commonwealth Africa to demon-

strate how reformist legislation and constitutional jurisprudence in the area of public law and judicial activism

highlight the issues that must be addressed if the legal system is to provide an effective system of family support

and maintenance.

Keywords:

family support

;

maintenance

;

inheritance

;

legislation

;

plural legal traditions

;

gender

discrimination

;

constitutional jurisprudence

INTRODUCTION

In several countries of South Asia and Africa, legislation enacted in the British period

of colonial rule regulated the obligation of spouses to maintain their minor children. Similar

legislation can be found in India, Bangladesh, Pakistan, and, until recently, Sri Lanka, as

well as in Uganda, Tanzania, and Kenya. These laws were introduced in the colonial period

as policy initiatives to ensure that a male, who was considered the breadwinner and head

of household, was accountable to provide some minimal f‌inancial support for his wife and

minor children born within marriage. The legislation was usually preceded by the enact-

ment of vagrancy laws that had similar provisions. This colonial legislation ref‌lected the

early perceptions of the English common law on family support and maintenance.

English common law did not recognize obligations of family support. Early legislation

enacted as Poor Laws introduced the idea that a man could be made criminally liable for

failing to provide f‌inancial support to his wife and minor children born within marriage.

He was not accountable to support his minor children born outside marriage unless there

was proof of paternity. The latter aspect was regulated by nineteenth-century bastardy leg-

islation which strictly regulated proof of paternity. Because the liability was considered a

criminal liability, strict rules of evidence were introduced to prove paternity where a child

was born through sexual relations outside marriage. The concept of independent corrobo-

ration of the woman’s allegation of sexual intercourse was introduced into the law as essen-

tial proof of paternity. Sexual relations outside marriage were perceived as illegal, and the

woman was an accomplice to illegal conduct. Just as the criminal law on sexual violence

and rape required corroboration to prove the act, paternity of a nonmarital child could not

be established for the purposes of the law of family maintenance without strict proof and

Correspondence: cenwor@slt.lk