Spousal Maintenance – the Duty to Support
Divorce and all it encompasses can possess a horrid stench. Often spouses resort to verbal, mental, financial and emotional abuse during these times which creates the eery atmosphere surrounding divorce. A common fear is the potential loss of financial support that a particular spouse may face should the marriage come to a dismal and dreary end.
The reciprocal duty of support is one of the fundamental aspects of marriage. Both spouses are weighed with the duty according to their monetary and financial disposition. In our current society, the patriarchal concept that a man should sustain the wife after marriage has slowly been shifting toward a gender-neutral stance. The underlying (yet overt) expectation placed on the male to provide has since enjoyed a marginal revolt as men are now increasingly finding themselves in positions of dependence post-divorce. However, this article seeks to pinpointedly focus on spousal maintenance and what protection you may have should you and your spouse find yourselves in a matrimonial sandstorm.
The Divorce Act 70 of 1979 (the Act) provides the necessary acknowledgements and guidelines for a spouse to claim maintenance should divorce ensue. The Act provides for two circumstances for such a claim to be made, namely, by Consent and Court order.
Consented Spousal Maintenance (S7(1) of the Act)
Section 7(1) of the Act provides for the instances in which payment for maintenance may be furnished by way of consent from both spouses. Consent is characterised and represented in the form of a written Settlement Agreement (Consent Paper) entered by both spouses during the marriage. Courts may grant a Decree of Divorce in which the written Settlement Agreement provides a clause ordering one spouse to furnish payment of maintenance to the other spouse.
Court Ordered Spousal Maintenance (S7(2) of the Act)
The Court in exercising its discretion may, in the absence of a written Settlement Agreement, grant an order, which the Court finds just and equitable for payment of maintenance, to be furnished on behalf of a particular spouse. Section 7(2) of the Act provides that the Court is to take specific factors into consideration, namely:
- Their respective earning capacities;
- The age of each spouse;
- The duration of the marriage;
- Their existing or prospective means;
- The standard of living of divorce granted;
- Their financial needs and obligations;
- The way in which their conduct influences the breakdown of the marriage;
- Any further consideration the court finds necessary to consider.
An Antenuptial Contract would have no bearing on the Court’s overriding discretion when deciding whether a spouse is entitled to maintenance in light of the above requirements.
The abovementioned indicates quite succinctly why it is necessary for spouses to head into divorce proceedings understanding what may be at stake and what rights are afforded to them. Spouses should particularly be aware of the requirements as provided in S7(2) of the Act to ascertain whether a need for maintenance exists.
Should you require any further assistance in your divorce proceedings, contact us and we will gladly assist.