When it comes to maintenance, things tend to become bitter. This could be due to financial, mental, and emotional abuse that makes spouse ending up taking dire decisions.
What is spousal maintenance?
Maintenance that is paid by a husband or a wife to their (soon to be) former spouse following a divorce. This kind of maintenance is different from child maintenance is usually paid monthly and continues either for a period of time, or for the remainder of the party’s life or when the maintained party’s life or remarries.
There are rules that help parties with the interim maintenance pending the finalization of a divorce, the said rules are Rule 43 of the High Court Rules (Rule 58 in the Magistrate Court).
When can one apply for spousal maintenance?
When a divorce is taking long time to finalise or when one of the spouses has no income, the law offers a procedure that can be used to help spouses during divorce to provide for the interim period until the divorce is finalized. In law, this is called interim relief can be used one or more of the following:
- Interim care or contact with the child.
- Maintenance for the wife and children.
- Enforcing certain payments, such as for the bond on the matrimonial home, vehicles, school fees, medical and even deposits on new accommodation and relocation costs
- Interim contribution towards the costs of the divorce and the legal fees
Rule 43/58 deals with many of the difficulties that will eventually be dealt with the final divorce action but is a temporary remedy as some divorces tend to take many years to be finalized.
In terms of the equality provision of the Constitution, all parties must equally enjoy the law, in this case the divorcing wife/ husband who has no income is entitled to a contribution to her/ his legal costs to ensure she/he has an equal opportunity to defend her/his case.
When can such application be brought?
Depending on the circumstances, such an application can be brought.
- Before issuing the summons.
- Simultaneously with the issuing of the summons.
- During the divorce proceedings.
Rule 43/ 58 applications are done by a way of notice of motion with attached affidavits (supporting) and annexures.
In TS V TS 28917/2016 [2017] ZAGPJHC 244, 2018 (3) SA 572 (GJ), Honorable Judge Spil J, emphasized the importance of financial disclosure during rule 43 proceedings, as non-disclosure is prejudicial to the other party.
In the absence of a written settlement agreement between the parties, the court in exercising its discretion may make an order which it deems just and equitable in respect of payment of maintenance.
The following factors are considered when the court is exercising its discretionary power:
- Existing or prospective means of each of the parties;
- Their respective earning capacities;
- Financial needs and obligations;
- Age of each of the parties;
- The duration of the marriage;
- The standard of living of the parties prior to divorce;
- Parties conduct in so far as it may be relevant to the breakdown of the marriage;
- Any factor which in the opinion of the court should be taken into account.
Given the pattern that our courts have been handling Rule 43/58 applications, it is reasonable to say that if parties were married for a long period, a party would be more likely to get interim maintenance as compared to the parties that were married for shorter period of time. Also, age of the parties can play a significant role when determining maintenance for a party who is 50 to 60 as it is said that such parties are likely not able to obtain a stable job.
For further information, please contact our offices.
