Till death do us part even after divorce?

02 July 2018 993
Upon the finalization of a divorce, spouses tend to be plagued with the question whether or not they would continue to be required and obligated to support a soon-to-be former spouse post-divorce. The short answer: it depends. After a holistic consideration of certain factors as per statute and the needs of the spouse claiming spousal maintenance and support post-divorce, courts have the power and discretion to award maintenance to a spouse seeking said maintenance. However, the needs of the spouse claiming maintenance must be reasonable and the spouse from whom maintenance is being sought must be in a position to provide said maintenance before a court can make such an order. More importantly, such an order would in turn be a value judgment on the part of the court.

The Divorce Act 70 of 1979 (the Act) makes provision for a spouse to claim maintenance upon divorce. However, it is important to note that this is not an automatic right and as such a court may grant an order for spousal maintenance after due consideration of a number of listed factors as per section 7(2) of the Act. The factors that the court will take into account when determining whether or not an order for spousal maintenance should be made include, but are not limited to, the financial means, the earning capacity and financial obligations of each spouse, the needs and age of both spouses, the duration of the marriage, the spouses’ standard of living prior to the divorce, their conduct relating to the breakdown of the marriage and any other factor that the court may deem relevant in determining whether such an order ought to be made. Having regard to the above factors, it is clear that the factors that a court will take into account when awarding maintenance are not at all exhaustive and as such the court has a very wide discretion whether or not to grant a maintenance and for how long said maintenance must endure as well as the amount payable.

An order for spousal maintenance may arise in one of two ways: either in terms of section 7(1) of the Act or section 7(2). The former section, section 7(1), provides that the court, when granting a decree of divorce, may, in accordance with the written agreement entered into between the parties prior to the finalization of the divorce (the settlement agreement), make an order with regard to the payment of maintenance by one spouse to the other.

In terms of section 7(2) and in the absence of a settlement agreement, the court may make an order which it finds just and equitable in respect of the payment of maintenance by the one spouse to the other by taking into account the factors as mentioned in the Act. 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 such maintenance is to be paid.

It is important to note and have due consideration to the fact that the word “may” is made use of in the Act by the legislature. It is therefore clear that awarding post-divorce spousal maintenance is solely discretionary and there is therefore no automatic right to maintenance on divorce and a party claiming such maintenance must therefore first prove that he or she is entitled to the maintenance before such an order may be made. Important to also note is that in terms of section 8 of the Act a maintenance order may at any time be varied, rescinded or suspended meaning that should the party being compelled to pay spousal maintenance be able to bring to the court’s attention evidence that the party receiving spousal maintenance is now in a position to maintain themselves, the order for spousal maintenance may be reviewed by the court and even set aside.

Our Supreme Court of Appeal (SCA) in the case of EH v SH 2012 (4) SA 164 (SCA) found that a person claiming maintenance must establish a need to be supported by the other party and that if no such need is established, it would not be just and equitable for a maintenance order to be made. Therefore, it is evident that one needs to prove that a need for maintenance does indeed exist. Interestingly, the SCA also in turn found that the mere fact that a spouse claiming maintenance post-divorce does so whilst living with another person is not necessarily a barrier disqualifying the spouse from claiming spousal maintenance. However, if the spouse claiming maintenance is being fully maintained by the other person with whom he/she is living, it is then clear that he/she therefore does not require spousal maintenance post-divorce and as such, the claim will be dismissed.

It is therefore evident that even once the divorce has been finalized, a spouse that is in a substantially better position financially may be compelled by a court of law to provide support to his/her former spouse provided that the former spouse is able to prove the existence of a need for maintenance and the presence of the factors as per section 7(2) of the Act. It is important to also note that because of the discretion awarded to courts in granting an order for spousal maintenance and because of the difficulties that normally arise in regulating and policing said maintenance, a spouse may very well find him/herself maintaining a former spouse until death if the former spouse can continue to prove to the court that a need for such maintenance does indeed exist. This therefore drives home the old adage “till death do us part” even more.
Tags: Divorce
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