SPOUSAL MAINTENANCE
By Omphulusa Shelton Mahandana
Spousal maintenance is a maintenance paid by a former spouse, to the other former spouse, in respect of that spouse only.
In terms of section 7(2) of the Divorce Act 70 of 1979 (the Divorce Act), a court will take the following factors into account to determine whether a spouse will be entitled to spousal maintenance:
- The parties existing and prospective means;
- Their respective earning capacities
- Financial needs and obligations
- The Duration of the marriage and the age of each party
- Standard of living of the parties prior to divorce
- Parties conduct in so far as it may be relevant to the break-down of the marriage
- Any other factors.
Section 7 of the Divorce Act specifies the responsibility to provide spousal support after divorce. The obligation may emerge in one of two ways:
Way of settlement agreement
According to Section 7 (1) of the Act, the court may order one spouse to pay the other spouse maintenance in line with the parties’ written agreement when granting a decree of divorce. This usually occurs when a settlement agreement is reached between the parties before the divorce is officially finalized.
By the Order of Court
In a divorce order, a court may order one party to pay maintenance to other either for period of time or for an indeterminate period of time until such person’s death or remarriage.
The court will take the following factors into account before determining whether spousal maintenance should be awarded to one spouse:
- The existing and prospective financial resources of the parties
The court will consider the capital assets, income from employment, as well as other sources of income that the parties may have. This also includes property – such as the matrimonial home – and trusts that generate income.
- The earning capacities of each party
The court will consider the earning capacities of the parties and will always attempt to achieve a termination of financial dependence of one spouse on the other.
In cases where couples become economically independent of each other, the court will be reluctant to award spousal maintenance.
- The financial needs and obligations of each of the parties
What may be considered as a need in one family, can be seen as a luxury in another. Therefore, the court will constitute a need for spousal maintenance based on the standard of living of the couple during the marriage.
- Parties’ standard of living during the marriage
The standard of living of the parties prior to their divorce plays an important role in the court’s decision and on the amount of maintenance payable.
The parties should maintain their standard of living. And the court will, therefore, balance the needs of both parties.
- The duration of the marriage and the age of each party
If the marriage was short-lived, the spouses can easily cut all financial ties. However, if the marriage was lengthy, it can be more complicated.
If the woman has not worked throughout the marriage and is too old or lacks work experience at the time of the divorce, the court may award maintenance in her favour.
A long-standing wife who has materially assisted her husband in the creation of his separate estate will be entitled to a larger sum of maintenance than one who was married for only a few years. The conduct of the parties, if it is relevant to the breakdown of the marriage.
Should you need assistance relating to spousal maintenance application, please do not hesitate to contact our offices.
