Spousal Maintenance

Spousal maintenance is not a given. There are various factors the court looks at before it decides whether or not to grant spousal maintenance. Unless you have agreed thereto in your divorce settlement agreement, it could be difficult to successfully seek an order thereof. The court likes to follow the clean break principle when it comes to divorce.

Section 7 of the Divorce Act 70 of 1979

Section 7(1) of the Divorce Act states that the court, when granting a degree of divorce, may in accordance with the written settlement agreement between the parties, make an order with regard to the payment of maintenance by one spouse to the other.

According to section 7(2) of the Divorce Act and in the absence of a written settlement agreement, the court may make an order which it finds just in respect of payment of maintenance by the one spouse to the other by taking various factors into account.

What factors will the court take into account?

The factors the court will look at are as follows:

The parties' existing and prospective means

The court will look at the financial resources of the parties in order to determine whether maintenance will be granted. Not only will the court look at the current financial resources of the parties', but it will also look at the prospective means (i.e. financial resources). In other words if one spouse is unemployed, but is capable of finding a job and earning an income, the court is not likely to grant maintenance in favour of that spouse.

The parties' respective earning capacities and financial needs and obligations

The court will always try to terminate all financial dependence between the parties upon divorce. This is called the clean break principle. After a divorce the parties should become financially independent as soon as possible. The court will look at what each party needs for their day to day living expenses in relations with their earning capacity.

The age of the Plaintiff (the one claiming the maintenance)

The age of the person claiming maintenance also plays a role. The older the person is, the less likely he/she might be able to get a job, which will then impact their earning capacity. It all comes down to, can each party support themselves financially.

The duration of the marriage

The duration of the marriage also plays a role, especially where one party, for example the wife, was a stay at home wife. If the parties were married 30 years and the wife was a stay at home wife all that time, her lack of work experience could disadvantage her in finding a job. In such a situation the court is more likely to grant a maintenance order.

Defendant's conduct in so far as it caused the breakdown of the marital relationship

Divorce is no longer based on matrimonial fault. Therefore maintenance cannot be awarded as a penalty for any matrimonial misconduct by either of the parties. Instead the court will have to look at the misconduct and determine whether it is in fact relevant to claim for maintenance.

The parties' standard of living

Ideally the parties' standard of living should not decline after divorce. Maintenance can be claimed in order to maintain that same standard of living post divorce. Again, the court will look at both parties' needs and try to balance them in deciding whether or not to grant spousal maintenance.

The court may also look at any other factors that it deems relevant or necessary.

When can spousal maintenance be claimed?

• During the marriage relationship;

• pending divorce; or

• after divorce.

It is important to note that spousal maintenance is not an automatic right. You will first have to prove why you feel you are entitled to it. But it is also not something that should just be shrugged off because you don't feel like it'll happen, especially if you are in need or are deserving of spousal maintenance.