Spousal Maintenance After Divorce

The purpose of this article is to provide information on the position of spousal maintenance in South Africa.

What is spousal maintenance?

Spousal maintenance refers to financial assistance provided by one spouse to the other following a divorce or separation to support the lower-earning spouse.

Relevant Section of the Divorce Act:

The relevant section of the Divorce Act 70 of 1979 is section 7:

The duty to pay spousal maintenance arises in two ways:

• Settlement Agreement

According to section 7(1) of the Divorce Act a court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of assets or payment of maintenance by one party to another.

• Order of Court

In the absence of an order being made in terms of subsection 1 in regards to the payment of maintenance by one party to another, the court may, having regard to the existing or prospective means of the parties ,their respective earning capacity, financial needs and obligations, the age of each parties ,duration of the marriage, standard of living of the parties prior to the divorce, their conduct as it may be relevant  to the breakdown of the marriage ,an order in terms of subsection 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 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.

Factors considered in awarding spousal maintenance  in terms of section 7(2):

• Existing and Prospective means of each party: The current and potential financial resources ,assets and income generating options are considered.
• Earning Capacities: In determining this the spouse’s education, skills, work experience and employment opportunities are considered.
• Financial Needs and Obligations: Financial needs and requirements for each party are considered by distinguishing between reasonable, necessary and luxurious expenses.
• Age of Parties: This is considered to determine their potential to generate income and obtain employment.
• Duration of Marriage: A longer marriage may result in a greater obligation to provide maintenance especially if one spouse was solely dependant on the other spouse’s income.
• Standard of living: The standard of living enjoyed by the parties prior to the divorce serves as a yardstick for determining the maintenance amount.
• Conduct leading to the divorce: The conduct of the party that contributed to the breakdown of the marriage is taken into account.
• Transfer of Assets: The court considers any orders made in terms of subsection 3.
• Other Relevant Factors: The court has the discretion to consider other relevant factors to make a just and fair determination.

Duration of Maintenance Awards to Divorced Parties:

• Duration of awards made in the absence of an agreement:

In this situation the court can order maintenance to be paid for any period, but only until the death or remarriage of the partner who is to receive the maintenance. In terms of common law, payment will normally not continue beyond the death of the person liable to pay.

• Duration of awards made in terms of an agreement:

This will depend on the terms of the agreement. The Divorce Court imposes no restrictions on the duration of maintenance agreements that are made orders of court.

Documents Needed to Prove a Claim for Spousal Maintenance:

• Schedule of your monthly income and expenses.
• Schedule of assets and liabilities reflecting their current values.
• Any evidence of your spouse’s income, expenditure and assets.