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The Dynamics of the right to spousal maintenance
01 February 2021  | Tumi Mokobe

A lot of people tend to think that a divorcee is automatically entitled to spousal  maintenance if he/she is unemployed and cannot sustain her/his own financial needs, however that is not the position and there are a few factors which the court take into consideration pertaining to such applications.

Spousal maintenance is maintenance which a court may order the other party to divorce proceedings should pay the one seeking such an order. Provision for this type of maintenance is made in Section 7 of the Divorce Act, 70 of 1979 (herein after referred to as "The Act"). The wording of the Act clearly states that a court "may" make such an order if it deems such an order fit considering all the facts surrounding the matter. A spousal maintenance order may be included in a deed of settlement should both parties agree to it, thereafter such an order will be made an order of the court without any arguments from both sides. On the other hand, Section 7(2) of the Act gives the court the discretion to make such an order if the applicant has satisfied the court that he/she does indeed need the maintenance. Section 8 of the Act also gives the other party paying spousal maintenance the right to bring forth an application to court in order to rescind or vary the existing order. 

It happens in a lot of instances that the wife would take care of the children which subsequently makes her a housewife during the marriage. Upon divorce proceedings being instituted, the housewife would apply for spousal maintenance. However, even though she has been the housewife for a certain period of time and did not generate any income for herself, it does not mean that the court will automatically grant the spousal maintenance order. The court will take the following factors into consideration before making such an order:

  • The parties' existing and prospective means;
  • The parties' respective earning capacities and financial needs and obligations;
  • The age of the Applicant;
  • The duration of the marriage;
  • Respondent's conduct in so far as it caused the breakdown of the marital relationship;
  • The parties' standard of living; and any other factor which the court may deem relevant.

Before a court makes a spousal maintenance order, the above mentioned factors will be taken into consideration. If it's clear to the court that the applicant does not actually need the maintenance, the court will most likely not grant such an order. If the applicant is still young and have the ability to seek employment for herself, the court will most likely not grant such an order. If the court has been satisfied by the Respondent's legal representative that the Respondent will not be able to afford spousal maintenance, the court will most likely not grant such an order.

Therefore, spousal maintenance is not something one can rely on before instituting divorce proceedings. A lot of factors are taken into consideration before such an order is made by the court.




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Tags: Divorce