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The common law recognises a reciprocal legal duty of support between spouses during the subsistence of their marriage. Upon dissolution of the marriage, the reciprocal duty of support comes to an end. Unlike maintenance for a minor child, spousal maintenance is not an automatic right post-divorce.

Section 7 of the Divorce Act 70 of 1979 deals with maintenance by one party to the other and factors which a Court takes into consideration. Section 7(1) of the Divorce Act states that a Court may incorporate spousal maintenance in a final order of divorce if divorcing spouses have mutually agreed and signed a written agreement to this effect. Should divorcing spouses be unable to reach agreement, Section 7(2) of the Divorce Act empowers the Court to make an order regarding payment of maintenance by one spouse to the other.

In determining whether the Court ought to make an order for spousal maintenance, the Court considers the following factors:

The financial means and needs of the parties

The Court examines the financial position of both parties and the parties shall be required to disclose financial documentation evidencing their respective income, expenses, assets and liabilities. The Court assesses the financial needs and obligations of the spouse seeking maintenance against the financial ability of the other spouse to pay maintenance.

The standard of living prior to the divorce

The standard of living enjoyed by the parties during the marriage is considered by the Court. This is to ensure that neither of the parties experience a significant decline in their standard of living post-divorce. The Court shall also consider whether the standard of living during the marriage is financially sustainable for the spouse who is requested to pay maintenance.

The duration of the marriage

If one spouse is financially dependent on the other spouse and the duration of their marriage is lengthy, there is an increased likelihood for spousal maintenance.

Earning capacity and employment prospects

This includes current as well as future earning capacity of both spouses. In the event that the spouse seeking maintenance is capable of becoming self-supporting through employment or training, the Court might limit the duration and amount of maintenance.

Age and health

The age and health of parties may influence the Court’s decision as it relates to the party‚Äôs earning capacity and financial needs. An older and retired spouse or a spouse struggling with a disability or illness may find it more difficult to secure employment and as such, may require the financial support of the other spouse.

Conduct of the parties

Although less common due to South Africa following a no-fault divorce system, the conduct of the parties during the marriage, as far as it may relate to the breakdown of the marriage, may be relevant.

Spousal maintenance is dealt with on a case by case basis and a Court is not limited in considering the above mentioned factors only. Section 7(3) of the Divorce Act grants the Court a wide discretion to consider any additional factors which a Court may deem relevant to matter.

Regarding the duration of payment by one party to the other, a Court may determine that maintenance is payable for a limited period of time to afford a financially dependent spouse an opportunity to acquire the skills or qualifications to become self-sufficient (otherwise known as rehabilitative maintenance). Alternatively, a Court may determine that maintenance is payable until the death or remarriage of the party in whose favour the order is given.

Contact Curran Attorneys on (021) 671 9322 for assistance with divorce related aspects.