Spousal Maintenance is different from child maintenance in that it is paid by one spouse to the other spouse following a divorce. It is a general principle of law that neither spouse has a right to spousal maintenance upon divorce.  However, the Divorce Act, 70 of 1979 provides the Court with the discretionary power to make an award should it be necessary.

One of the basic principles of marriage is the reciprocal duty of support. The duty rests on both spouses according to their respective means. Spousal maintenance refers to a claim for financial support during, or after the dissolution of marriage.

The Divorce Act makes provision for a spouse to claim maintenance upon divorce in two circumstances, namely, by consent and/or by court Order. Without a written agreement between the spouses that was agreed upon before the divorce, the Divorce Act comes into effect and the Court will use its discretion when deciding on whether one spouse should pay maintenance to the other spouse.

Spousal Maintenance by Consent

Section 7(1) of the Divorce Act makes provision for circumstances wherein payment of maintenance may be reached through the consent of both spouses. Therefore, the Court may, in accordance with the written Settlement Agreement (consent paper) entered into between the spouses during the subsistence of the marriage, grant a decree of divorce incorporating the written settlement agreement wherein it is ordered that one spouse will pay maintenance to the other.

Spousal Maintenance by way of Court Order

In the absence of a written settlement agreement between the spouses, the Court in exercising its discretion may make an order which it deems just and equitable in respect of payment of maintenance. The court will take into account when determining whether a spouse will be entitled to spousal maintenance the following:

  • their existing or prospective means;
  • their respective earning capacities;
  • their financial needs and obligations;
  • the parties’ ages;
  • the duration of the marriage;
  • the standard of living of the parties prior to the divorce;
  • the parties’ conduct insofar as it may be relevant to the break-down of the marriage;
  • any other factor, which in the court’s opinion should be taken into account.

Should the court decide to award maintenance to a spouse, these factors mentioned above will determine the amount of that maintenance. The purpose of an inquiry is to determine what award would be fair. In order to determine what is fair, the court has to consider whether maintenance is to be paid at all, and if so, what the amount should be as well as the period for which maintenance would be payable.

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Author – Kate Bailey – Hill

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