More on spousal maintenance



Factors that a court will consider when awarding post-divorce spousal maintenance.


Section 7(2) of the Divorce Act deals exclusively with the factors that the court will consider when awarding maintenance:


• Existing and Prospective means of the parties


The means of a person indicates the financial resources a person has access to. This includes, amongst other things, capital assets, income from employment, income from shares/investments and fixed property that can be used to generate income. It is important to note that means exclude an inheritance or voluntary payments to a spouse from his/her children from a previous marriage. It is no exact science to calculate the means of a person, therefore all variable factors need to be taken into account upon the divorce of the parties. Maintenance can only be determined once the division of assets have been finalised.


• Earning capacities of the parties


Post-divorce, parties to a divorce should become financially independent from each other as soon as possible. Our courts favour the idea of a clean-break principle where parties attempt to terminate inter financial dependence on each other completely. Where a spouse earns enough to support him/herself and maintain a reasonable standard of living, the court will be reluctant to award maintenance in this spouse’s favour. The age, qualifications, employment status and number of dependent children of the spouse claiming maintenance will also be taken into consideration. In scenarios where both spouses are economically active their respective incomes must be taken into account to determine whether or not each spouse will be able to meet his/her maintenance needs. In K v K 2006 (6) SA 127 (C) it was rightfully held that the division of roles in a family influence not only the past earning capacity of a party, but also his/her future earning capacity. If a spouse can work but chooses not to the court will not be more lenient towards this spouse in terms of the granting of maintenance.


• Financial needs and obligations of parties


The standard of living of a couple during their marriage will establish the needs of a specific party. What is considered to be a reasonable need in one family may be totally irrelevant in another family. It is also quite possible to confuse a party’s needs with the party’s wants. It is important to determine how much money each party needs for their day-to-day living or needs, and what percentage of their income they need to spend on obligatory purposes. In B v B 2009 (2) SA 421 (C) interim maintenance was granted for a wife who still had two dependant adult children who resided with her as the wife incurred an obligation to look after her family as per section 7(2) of the act. Even though the court is in favour of the clean-break principle it will accommodate a spouse that has insufficient income or no income at all to support him or herself. This is to avoid scenarios of inequality.


• Duration of marriage and ages of parties


The court will be more likely to award maintenance to a spouse that spent the majority of his/her married life without being economically active or who earns an income that is not viable to live on alone. The court will also consider the age and lack of working experience of a spouse claiming maintenance. The length of the marriage is not a deciding factor, but will contribute towards the decision to grant maintenance as a secondary factor.


A spouse who has assisted the other spouse materially in building up his/her separate estate will be entitled to far more in terms of spousal maintenance.


Even though a court might grant spousal maintenance on the grounds that the spouse did not work before or do not earn a sufficient income to support himself/herself the court will still take the possibility and likelihood of a spouse to re-enter the job market into account. Thus, a younger person will have a higher prospect of re-entering the job market successfully and will therefore be granted a lesser spousal maintenance amount if maintenance gets granted. In G v G 1987 (1) SA 48 (C) it was confirmed that rehabilitative maintenance is a good alternative for a middle-aged spouse claiming maintenance. The idea behind rehabilitative maintenance is for the spouse to prepare himself/herself with the necessary training or qualifications to re-enter the job market. Bear in mind rehabilitative maintenance is temporary and will stop when the spouse is self-sustainable or at a stage as previously agreed on between spouses. Permanent maintenance is reserved for an elderly spouse that has been married for a long time and is likely to old to earn his/her own living and unlikely to remarry.


• Standard of living during the marriage


The idea is to keep the standard of living of each spouse as close as possible to the standard spouses are accustomed to during the divorce. The court will balance the needs of both parties and each case will be decided upon its own facts. The court can use its own discretion and is not bound to refuse maintenance simply because a spouse can support himself/herself. If supporting oneself means a substantial lower standard of living, the court may award the spouse maintenance. The individual facts of each case must be considered before the court will make a just decision. In MB v NB 2010 (3) SA 220 (GSJ) it was held that the proper approach to divorce is that parties must continue to live the lifestyle they have become accustomed to during the marriage for as long as it is permitted by the resources at their disposal. If resources are limited or becoming scarce, then each spouse must co-operate by lowering their respective living standards to a more acceptable norm. It will be grossly unfair for a spouse who claim maintenance to expect the paying spouse to lower his/her standard of living alone while the spouse receiving maintenance continue to maintain a higher living standard.


• Conduct leading to breakdown of a marriage


There is a misperception that divorce is based on matrimonial fault. This is not the case in South Africa anymore. Therefore, spousal maintenance cannot be seen as a penalty for misconduct. Before the court considers conduct leading to divorce, the court must first decide whether such conduct is in fact relevant. Conduct can be seen merely as a symptom and not the cause of the breakdown of the marriage and will thus not be considered by the court. Adultery is the perfect example of such conduct. Say for instance a spouse who was unable to work due to ill health and dependent on his/her spouse’s financial support becomes wealthy and decide to ditch the spouse that supported him/her previously, the court may well award spousal maintenance if it can be proven that gross misconduct caused the marriage to break down. In such scenarios the misconduct of spouses will be taken into account. This was confirmed in G v G 1987 (1) SA 48 (C) where a husband’s persistent adultery was seen as gross 17 misconduct and that this misconduct played a role in deciding whether or not maintenance had to be awarded to the wife. Even though the wife had a professional qualification and could maintain herself, maintenance was still awarded to her.


• Additional factors considered by the court

    • The best interests of the children involved.
    • Childcare responsibility of the dependent spouse.
    • Inflation rate
    • The manner in which each party convey his/her financial position and needs.
Post-divorce, parties to a divorce should become financially independent from each other as soon as possible. Our courts favour the idea of a clean-break principle where parties attempt to terminate inter financial dependence on each other completely.