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The duty to pay spousal maintenance post-divorce is found in Section 7 of the Divorce Act, 70 of 1979. This duty arises in two ways:

Section 7(1) of the Act provides that the court, when granting a decree of divorce, may in accordance with the written agreement between the parties, make an order with regard to the payment of maintenance by one spouse to the other. This is usually in the case where a settlement agreement is entered into between the parties prior to finalisation of the divorce.​

In terms of Section 7 (2) of the Act and in the absence of a written agreement (settlement agreement) the court may make an order which it finds just in respect of the payment of maintenance by the one spouse to the other by taking various factors into account. The court is required to consider the factors referred to in section 7(2) in order to decide, firstly whether maintenance is to be paid at all and, if so, the amount to be paid and the period for which maintenance is to be paid.

According to section 8 of the Divorce Act, 70 of 1979 a maintenance order, made in terms of this Act, may at any time be rescinded or varied or, in the case of a maintenance order, be suspended by a court if the court finds that there is sufficient reason.

The court will always be able vary a maintenance order when there is sufficient reason to do so. Although a settlement agreement is contractual in nature it may be argued that since it is impossible to foresee the future circumstances of the parties, considerations of fairness and justice should be applied. With that in mind, in special circumstances a courts’ jurisdiction should not be ousted to vary a maintenance order that simply does not fit in with reality. Settlement agreements are not agreements that are cast in stone.

If you currently have an obligation to pay spousal maintenance in terms of a settlement agreement and Court Order, and if your financial position has changed since the granting of such Court Order, you can apply to the maintenance Court to either have such Order varied or discharged in its entirety.

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Author – Jessica Gooding

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