Maintenance of spouses in divorce
There are basically two options regarding spousal maintenance:
- Where there is an agreement between the parties
- Where there is no agreement but where the court makes an order for spousal maintenance
Where the parties agree on the maintenance
Parties in a divorce may enter into a settlement agreement regarding the maintenance that the once spouse will pay to the other. Where the parties only reach an informal agreement without making their agreement an order of court, the agreement remains unenforceable.
Maintenance order in the absence of an agreement
In terms of section 7(2) of the Divorce Act, a court may make a maintenance order in the absence of a written agreement between the parties. Such an order can apply until death or remarriage. The basic principal that will apply is that the party who applies for maintenance must show a need for it and the party against whom the order is made must be able to provide for it.
The court will consider a wide range of factors when it decides on giving the other party maintenance and in section 7(2) of the Divorce Act various factors should be taken into account, these are:
- The existing and prospective means of the parties
- The respective earning capacities of the parties
- The financial needs and obligations of the parties
- The age of each party
- The duration of the marriage
- The standard of living of the parties prior to the divorce
- The conduct of each of the parties in relation to the breakdown of the marriage
- Any order in terms of section 7(3) of the Divorce Act (a redistribution order)
- Any other factor that the court may take into consideration
There are basically three types of maintenance orders:
- Rehabilitative Maintenance – Where a maintenance order applies for a specific period of time, it is called a rehabilitative maintenance order. This is normally awarded to younger or middle-aged women who have for years devoted themselves to the upbringing of the children and who were full time involved in the household. The purpose of this kind of maintenance is to tie them over to be trained or retrained to find suitable employment.
- Permanent Maintenance – The court may award lifelong maintenance to a woman that is too old to find a job.
- Token Maintenance – Token maintenance is an order for a minimal amount. The court will make such an order if there is no reason to grant maintenance at the time of the divorce, but foresees that the spouse may in future need maintenance. The court would then be able to increase the amount in future should the need arise.
It is clear from the wording of section 7 (2) of the Divorce Act that a maintenance order can be made against a husband or a wife. It is also important to note that a court may not consider all the factors listed above before it makes a maintenance order and that a party is not as of right entitled to maintenance. The factors are not exhausted and one does not have preference over the other. Therefore each case must be considered on its own merits in light of the circumstances and facts peculiar to it and with regard to those factors set out in the Divorce Act.
About the Author
Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.