Spousal maintenance post-divorce

How long should spousal maintenance be payable?

Long ago, women gave up working when they had children. Even longer ago, they gave up working when they got married, or they didn’t work outside the home at all, waiting for the right man to come along so they could fulfill their destiny as wife and mother. Now it is much more common for both spouses to have independent incomes. Indeed, it is no longer a given that the man is the “breadwinner” or higher earner, let alone the sole income earner, in a family. It is not unheard of (though still relatively uncommon) for a man to request maintenance from his ex-wife on divorce. If maintenance is payable, how long might it last? Can a person in their 30s expect to pay…or receive…spousal maintenance for the rest of their life? In the case of two able-bodied individuals, it seems unreasonable. What does the law say?

Duty of support

Marriages create a reciprocal duty of support between spouses which terminates upon death or divorce. Statutory laws do not make provision for the extension of this duty post-divorce. This means that maintenance orders are made at the court’s discretion. The lack of a legislative framework makes the criteria used to effect an order of spousal maintenance unclear. Legal practitioners therefore struggle to predict their clients’ prospects. Each order depends on the discretion of the judge and an order can be for any specific amount for any particular period of time.

Relevant factors

In terms of section 7(2) of the Divorce Act,  the court may, after considering the relevant factors, make an order that is just and equitable in respect of payment of spousal maintenance. The factors the court may take into account include, but are not limited to, the age of the parties and their respective earning capabilities, duration of the marriage, and the need and resources of each party.

When one spouse is left unable to sustain their life post-divorce, the court may order the other spouse to extend their financial support for a limited period of time. The spouse left worse off financially has historically been the woman, who directly or indirectly assisted her male spouse (same-sex marriage only came into effect after these antiquated norms had more or less ceased to be relevant, and the dynamics in a same-sex couple are entirely different) to acquire and maintain financial resources during the marriage. Historically, and for any women still in this position, these gender norms have left women vulnerable and financially disempowered. A spouse who may need maintenance to survive after divorce must ensure the maintenance claim is included in the divorce agreement, as claiming after divorce is not possible.

Just and equitable

With that in mind, our courts need to make an order that is just and equitable in the circumstances. The South African courts have found that a spouse cannot be ordered to maintain two separate households and it is reasonably expected that both spouses’ standard of living will drop after divorce. Monetary support is a fair initiative to provide the financially weaker spouse with financial security post-divorce, especially if they were prevented from actively advancing their careers or acquiring skills which would enable them to earn an income, either by direct prohibition (some men forbid their wives to work) or by mutual agreement that the wife’s role is in the home. The amount of maintenance and the length of time it will be payable will depend on each person’s need and available resources, together with the age and employment prospects of the spouse making the request.

Clean-break principle

Recently, as women have become more equally represented in the workforce, the courts have embraced the clean-break principle. This means that spousal maintenance is rehabilitative rather than lifelong. Rehabilitative maintenance refers to a certain amount of money payable to a dependent spouse (usually the homemaker) following divorce for a short, determined period of time to allow that person to obtain education or new skills, or have time to look for alternate work and become financially independent. This means that, generally, spousal maintenance is a discretionary remedy and the courts are empowered to make such an order.

The provisions of the Divorce Act clearly indicate that rehabilitative maintenance is not a statutory remedy, but one that can only be granted by the court when a case has been made for it. Rehabilitative spousal maintenance needs to be legislated in South Africa to provide adequate guidance to the courts when making such orders. The lack of legislative guidance has led to inconsistent approaches being developed by our courts. Amendments to the Divorce Act needs to be promulgated in order to make provision for rehabilitative spousal maintenance and do away with these irregularities.

Seek the advice of an excellent divorce lawyer for any maintenance concerns 

SD Law is a firm of experienced divorce attorneys based in Cape Town, with offices in Johannesburg and Durban. Family lawyers deal with much more than just divorce and custody. If you have concerns over your maintenance agreement or problems with maintenance arrears, call family lawyer Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Maintenance arrears of over R3m ordered to be paid 29 years after divorce
• Man who failed to pay maintenance to child and former wife must report to jail
• Survivor in permanent life partnership can claim maintenance from deceased partner’s estate

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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