SPOUSAL MAINTENANCE IN SOUTH AFRICA
WHAT IS SPOUSAL MAINTENANCE?
Spousal Maintenance is different from child maintenance in that it is paid by one spouse to the other spouse following a divorce. It is a general principle of law that neither spouse has a right to spousal maintenance upon divorce. However, section 7(2) of the Divorce Act, 70 of 1979 provides the court with the discretionary power to make an award should it be necessary.
Without a written agreement between the spouses that was agreed upon before the divorce, Section 7(2) of the Divorce Act comes into effect and the court will use its discretion when deciding on whether one spouse should pay maintenance to the other spouse.
For clarity, we quote Section 7(2) of the Act herewith:
“the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, the conduct in so far as it may be relevant to the breakdown of the marriage, an order in terms of section 7 (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur”.
WHO IS ENTITLED TO SPOUSAL MAINTENANCE?
You should be aware of the factors the court will take into account when determining whether a spouse will be entitled to spousal maintenance or alimony. The court may decide to look at the following:
- their existing or prospective means;
- their respective earning capacities;
- their financial needs and obligations;
- the parties’ ages;
- the duration of the marriage;
- the standard of living of the parties prior to the divorce;
- the parties’ conduct insofar as it may be relevant to the break-down of the marriage;
- any other factor, which in the court’s opinion should be taken into account.
Should the court decide to award maintenance to a spouse, these factors mentioned above will determine the amount of that maintenance. Thus, the amount cannot be treated as a separate question. The means, earning capacity, financial needs and obligations and age of each of the spouses and an order in terms of the Divorce Act for the transfer of assets from one party to the other all relate to the criteria of need for support and ability to pay, while the conduct of the parties introduces a moral component to the judgement. The purpose of an inquiry is to determine what award would be ‘just’. In order to determine what is just, the court has to consider whether maintenance is to be paid at all, and if so, what the amount should be as well as the period for which maintenance would be payable.
INSIST ON DEALING WITH SPOUSAL MAINTENANCE LAWYERS DURING & AFTER DIVORCE
The important aspect when deciding to apply for spousal maintenance is the fact that you must feel comfortable with the family law attorney you decide on. You must trust, respect and be aware of the experience the chosen attorney has to guide you through the process.