When it comes to divorces, things tend to become acrimonious. This could be as a result of one spouse being subjected to verbal, mental, financial and emotional abuse or simply growing apart. Be that as it may, a common fear in respect of divorces is the possible loss of financial support, previously provided by a spouse during marriage.
One of the basic principles of marriage is the reciprocal duty of support. The duty rests on both spouses according to their respective means. It is often the male spouse is who is counted on to adequately support the female spouse. Be that as it may, societal norms have come a long way from our history of patriarchy and female spouses appear to be enjoying the same dependence as that of their male counterparts in a number of instances. Spousal maintenance refers to a claim for financial support sort during or after the dissolution of marriage and this article serves to unpack some of the basic principles in relation to the same.
Many people are not aware that the Divorce Act 70 of 1979 (the Act) makes provision for a spouse to claim maintenance upon divorce in two circumstances, namely, by Consent and Court order.
Consented Spousal Maintenance
Section 7(1) of the 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.
Court Ordered Spousal Maintenance
In the absence of a written settlement agreement between the parties, the Court in exercising its discretion may make an order which it deems just and equitable in respect of payment of maintenance. In terms of section 7(2) of the Act, the court is required to take into account the following factors when exercising its discretionary power:
- Existing or prospective means of each of the parties;
- Their respective earning capacities;
- Financial needs and obligations;
- The age of each of the parties;
- The duration of the marriage;
- The standard of living of the parties prior to the divorce;
- Their conduct in so far as it may be relevant to the breakdown of the marriages; and
- Any factor which in the opinion of the court should be taken into account.
In light of the above, it is imperative that spouses are made aware of the fact that they may be compelled by law, post-divorce, to provide support to their former spouses until the death or remarriage of the former spouse or whichever event may first occur. This is dependent on the former being able to prove, in line with Section 7(2), that a need for such maintenance indeed exists.
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