Calculating spousal maintenance

How is maintenance calculated on divorce in South Africa?

In South Africa, the Divorce Act 70 of 1979 makes provision for spousal maintenance to be paid at the discretion of the court. It is not an automatic right and can be a highly charged subject. Laws and practices vary around the world, but in general terms the days of a wife receiving maintenance – or “alimony” as it is called in the US – for life and bankrupting her ex-husband in the process are in the past. Most countries, including South Africa, now take a gender-neutral approach to spousal maintenance, and a high-earning wife can be ordered to pay maintenance to her ex-husband, although it is still uncommon. It is the difference in income that matters, not the sex of the earners. How is maintenance calculated? Is there a formula the courts apply? Unfortunately, there is not. We say “unfortunately”, because it would make matters easier for divorcing couples and their lawyers if there were. But the lack of a legislated calculation ensures that every case is decided on its own merit, and prevents a pre-determined formula from unfairly discriminating against one party or the other.

Factors the court considers

As already indicated, there is no automatic right to spousal maintenance in the event of a divorce, and our courts have discretion to award spousal maintenance or not. When a judge decides whether to order maintenance payments after divorce, they begin by considering whether one spouse needs support and whether the other spouse has the ability to pay. The courts will take the following factors into account (outlined in section 7(2) of the Divorce Act) when awarding spousal maintenance:

• The parties’ existing and prospective means
• The parties’ respective earning capacities and financial needs and obligations
• The age of the spouse seeking maintenance
• The duration of the marriage
• The conduct of the other party insofar as it caused the breakdown of the marital relationship
• The parties’ standard of living
• Any other factor the court deems relevant

One factor the court won’t consider is who initiated the divorce action. A wife can file for divorce against her husband and still request spousal support. However, if, for example, a higher-earning wife has filed for divorce because of her husband’s infidelity or abusive behaviour, and he requests maintenance, his request may be denied on the basis of his conduct. The converse is also true: a wife who has been unfaithful or unreasonable and caused her husband extreme pain may be refused maintenance, even if he is the one to initiate the divorce. But cases like these are rare.

Rehabilitative maintenance

Spousal maintenance may be permanent, but more commonly it is rehabilitative. This allows a party, usually the wife, who devoted her time and energy to raising the children of the marriage, to retrain or bring existing skills up to speed after a career break, with a view to resuming full-time employment. Or the stated period might be until the children reach the age of majority, when it is assumed the woman can re-enter the workforce.

Proof of expenses

To enable the court to make a judgment and grant a fair maintenance order, both parties are obliged to provide the court with proof of their expenses. A judge may decide that the party with the duty of support could be earning more than they currently are. This may mean, for example, if they are working part-time they will be expected to look for a full-time job.

It’s important to make the distinction between the duty of parents to support their children and spousal maintenance. The two are unrelated. Furthermore, the right of a parent to have access to their child(ren) is not contingent on paying maintenance for the child, and vice versa. Both parents have a responsibility to support the financial needs of their children according to their respective means. When it comes to calculating child support or maintenance, a child’s portion of shared expenses is deemed to be half that of an adult. A rule of thumb for determining child support is:

(Parent’s gross income)                                                    (Child’s needs)

______________________                     X                      ____________

(Total gross income of both parents)                                        1

However, as stated previously, there is no equivalent formula for calculating spousal maintenance. Remember that once a maintenance order has been made, and the divorce is finalised, it is usually not possible to amend the order post-divorce. So it’s wise to be open and honest about your finances, whether you are the one likely to pay or receive support. Hiding important details at this point may be a matter for regret at a later date.

Interim maintenance (Rule 43)

There is another type of spousal support – a Rule 43 order. This is an interim order designed to provide an immediate, temporary facility that will prevent potential financial hardship while waiting for a divorce to be finalised. A non-earning spouse may require interim maintenance when no longer in receipt of a joint household income. The lower- or non-earning spouse may also require financial assistance with legal costs, to ensure fair and equitable access to due process of law. (It may also be used to ensure custodial arrangements are suitable and children are not placed at risk.)

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. If you are considering divorce and want to discuss your options, including any potential entitlement to maintenance, call family lawyer Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Spousal maintenance post-divorce
• 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
• Maintenance claim against a retirement fund

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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