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VZK | May 2021

Dear Client / Geagte Kliënt


Spousal Maintenance

Hierdie maand gee Cheryl-Anne vir ons ‘n kykie agter die skerms met betrekking tot vraagstukke rondom onderhoudseise deur voormalige eggenote vir hulself, direk na die egskeiding, asook op latere stadiums.

One of the reasons a spouse might stay in a marriage, even though it has irretrievably broken down, is often because the spouse fears the loss of financial support provided by the other spouse. A spouse may have sacrificed a career to look after the children or to take care of the family. This may even have been at the request of the other spouse. The financial dependence on a spouse during the marriage may in the long run create problems (for both parties), especially when faced with a divorce.

During the subsistence of a marriage, spouses owe each other a reciprocal duty of support,  according to their respective means. This common law duty to support each other includes basic things like accommodation, clothing, food, medical services, and other essentials. However, this reciprocal duty of support is not a statutory right and comes to an end when the marriage is terminated by death or divorce. When a marriage is terminated due to the death of a spouse, the surviving spouse can claim maintenance against the estate of the deceased spouse in terms of the Maintenance of Surviving Spouses Act 27 of 1990.

Our South African courts favour the “clean break” principle. This means that after a divorce parties are expected to become economically independent of each other as soon as possible. This is, however, not always possible. A stay-at-home spouse, for example, may find themselves at an age where it’s difficult to find employment to support themselves. On the other hand, there may be those who have become used to a certain lifestyle after marriage and who would like to maintain that standard of living after a divorce. 

Many parties, for various reasons, find themselves unrepresented at divorce proceedings and are not always aware of what they can claim. It is important to note that the Divorce Act 70 of 1979 allows a spouse to claim maintenance upon divorce in two instances, namely, by Consent and a Court order. 

Spousal Maintenance By Consent:

Where the parties signed a Settlement Agreement/Consent Paper during the marriage, wherein one spouse agreed to pay the other spouse maintenance after the divorce, the Court may grant a divorce order incorporating the Settlement Agreement/Consent Paper. One spouse will then be ordered to pay maintenance to the other.

Spousal Maintenance By Court Order:

Where there is no signed Settlement Agreement/Consent Paper between the parties, a spouse can ask the Court for maintenance and the Court may make a maintenance order which it deems just and equitable. In terms of Section 7(2) of the Act, the Court will take the following factors into account to determine whether a spouse will be entitled to maintenance: 
  • 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 before the divorce; 
  • their conduct in so far as it may be relevant to the breakdown of the marriages; and 
  • any factor which in the opinion of the court should be taken into account.

No automatic right to spousal maintenance:

A spouse may be ordered to provide financial support to their former spouse for several years or until the death or remarriage of the former spouse. It is, however, very important to note that there is no automatic right to spousal maintenance on divorce. A spouse must firstly claim maintenance and secondly prove to the Court, during the divorce proceedings, that he or she is entitled to it. The Court then has discretion whether to award spousal maintenance to a party or not. A claim for spousal maintenance can only be granted on divorce (Sec 7 of the Act). 

Whether or not a court can rescind a divorce order, which has been granted in default has been a grey area and a bone of contention in our Courts. A court will grant a divorce by default if, for example, you serve a divorce summons on your spouse and the spouse does not respond. An applicant who wants to claim spousal maintenance after a divorce order was granted by default has to seek a rescission of the whole divorce order. This creates a problem in that, if granted, the divorced parties will find themselves married again (against their will). Then there’s also the possibility that an ex-spouse may have remarried. Rescinding the whole divorce order would in this situation set aside the new marriage which will have far-reaching consequences. 

The High Court in Togo v Molabe and Another (GP) (unreported case no 29059/14, 26-7-2016) (Wentzel AJ) stressed the fact that if spousal maintenance is not claimed at the time of the divorce, it is forever forfeited and cannot be claimed at a later stage, even in changed circumstances. In this case, the court left the divorce order intact and only rescinded the proprietary consequences of the divorce order. The applicant, however, forfeited her entitlement to spousal maintenance. 

There have, however, been calls lately for the recognition of a claim for spousal maintenance after a divorce order has been granted.

Groete / Regards

Hennie, Eberhard & Cheryl-Anne

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