Spousal Maintenance


Consider the following case scenario: Mrs X has been married for over 30 years. She was last employed when she was in her twenties for a short period, until the birth of the parties’ first child. She received no formal training or does not have any skill or recent work experience. She was a “stay-at-home” mom and looked after the children and the effective running of the household. What are her rights in terms of lifelong maintenance, or for any period at all?

One of the consequences of marriage is the reciprocal duty of support (maintenance) between husband and wife; or between partners in a civil union/partnership. It is by no means confined to maintenance needs, but also includes the duty to contribute to the costs of one spouse’s litigation during the divorce process. If the parties are unable to reach agreement regarding all issues in dispute, and pending the outcome of the final divorce order, the court may grant an interim order for spousal maintenance, as well as an order for contribution towards that party’s legal costs.

In determining the final maintenance order, although there is no specific formulae, Section 7(2) of the Divorce Act sets out certain factors to be considered by the court:- 1 The current or future means of the parties; 2 Their earning capacities; 3 Their financial needs and obligations; 4 The age of each of the parties; 5 The duration of their marriage; 6 The standard of living of the parties prior to divorce; 7 Their conduct insofar as it may be relevant to the breakdown of the marriage; 8 Or any other factor which in the opinion of the court should be taken into account.

Over and above monthly maintenance orders, the court has a wide discretion and may also order lump sum payments. In recent judgments the courts included lump sum payments, over and above monthly maintenance orders, to provide for household necessities, accommodation, or to provide a house, car and furniture items. In one such case, the court ordered the husband to pay his former wife a maintenance amount of R8,500 per month plus medical expenses, a lump sum of R170,000 to buy a car, R80,000 to buy furniture and to make a home available of her choice that did not exceed R500,000. In another case, the husband was ordered to pay his ex-wife maintenance of R25,000 per month. It is also interesting to note that the court deemed a five-year marriage as a relatively long period, even in the event of second marriages. Although certain concerns have been raised about a trend by the courts to make, what seems, exorbitant maintenance orders, it is at the same time welcoming to use this extension of the maintenance principle where justifiable causes exist.

Bear in mind that each case is unique and all factors play a role to determine the final outcome. Agreements that you enter into during the divorce process have a long-term effect. It is therefore important to have a full understanding of your legal rights and to consider all your options before making a final decision. Contact me to discuss your options or if you need a second opinion.

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