The duty to pay spousal maintenance post-divorce arises in two ways in Section 7 of the Divorce Act, 70 of 1979.
In Section 7(1) of the Act it provides that, when there is a written agreement between the two parties prior to the divorce, the court may grant a decree of divorce and make an order with regards to the payment of spousal maintenance.
In Section 7(2) of the Act, it provides that, in the absence of a written settlement agreement, the court may make an order in respect of the payment of spousal maintenance, but only after taking various factors into account.
According to Section 7(2) of the Act, if there is no written agreement between the two parties prior to the finalisation of their divorce, the spouse will have to provide evidence as to why he or she requires maintenance.
The court will take the following factors into account before determining whether spousal maintenance should be awarded to one spouse:
The court will consider the capital assets, income from employment, as well as other sources of income that the parties may have. This also includes property - such as the matrimonial home - and trusts that generate income.
The court will consider the earning capacities of the parties, and will always attempt to achieve a termination of financial dependence of one spouse on the other.
In cases where couples become economically independent of each other, the court will be reluctant to award spousal maintenance.
For example: If a woman earns enough to support herself and maintain her standard of living after the divorce, the court will not grant maintenance in her favour.
The same goes in cases where a woman is young, well qualified, has no children (or no young children), has worked throughout her married life and is in good health, or where the marriage only lasted for a short period of time.
This is commonly referred to as the 'clean-break principle'.
What may be considered as a need in one family, can be seen as a luxury in another. Therefore, the court will constitute a need for spousal maintenance based on the standard of living of the couple during the marriage.
The standard of living of the parties prior to their divorce plays an important role in the court's decision on the amount of maintenance payable.
Ideally, the parties should maintain their standard of living. And the court will, therefore, balance the needs of both parties.
If the marriage was short-lived, the spouses can easily cut all financial ties. However, if the marriage was lengthy, it can be more complicated.
If the woman has not worked throughout the marriage, and is too old or lacks work experience at the time of the divorce, the court may award maintenance in her favour.
A long-standing wife who has materially assisted her husband in the creation of his separate estate will be entitled to a larger sum of maintenance than one who was married for only a few years.
The court must assess whether the conduct of the parties led to the breakdown of the marriage.
Desertion and adultery, for example, might be seen as symptoms of a marriage breakdown, and not the cause, and it will therefore not be considered by the court.
An overall picture of the marriage needs to be formed. For instance, if an unemployed housewife received financial support from her husband and then suddenly wins the lottery, her husband may be awarded maintenance if she files for a divorce shortly after becoming wealthy.
Once the court has established that a spouse is entitled to spousal maintenance, they will determine the amount and duration of the maintenance in accordance with Section 7(2) of the Act.
The first step to calculating the amount of maintenance payable is by drafting the income and expenditure for each of the parties.
If there are children involved, the spouse with whom the children reside will have more expenses, and will thus receive maintenance that covers her expenses as well as that of her children.
If you need assistance with the drafting of a divorce settlement agreement, or legal advice with regards to your divorce, child maintenance or spousal maintenance, contact Van Deventer and Van Deventer Incorporated, the preferred divorce attorneys in Johannesburg.
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