CAN I CLAIM MAINTENANCE FROM MY EX-SPOUSE AFTER THE DIVORCE?

CAN I CLAIM MAINTENANCE FROM MY EX-SPOUSE AFTER THE DIVORCE?

In South Africa, there is a legal duty on one spouse to support the other pending divorce, or even after divorce, regardless of the marriage regime. The maintenance is usually paid in monthly instalments for a specific time period.

A common misconception is that spousal maintenance places an unfair burden on the spouse who must support the other financially even though they don’t share a marital bond anymore. This is especially apparent in divorce settlements where the financially weaker spouse already received 50% of the marital assets and still claim maintenance. This misconception is far from true as spousal maintenance assists in the rehabilitation of both spouses. It encourages a “clean break” divorce in which the parties may peacefully sever bonds.

SPOUSAL MAINTENANCE BY AGREEMENT

The legislation regulating spousal maintenance is section 7 of the Divorce Act 70 of 1979. The Divorce Act determine that spouses can agree to spousal maintenance prior to the final divorce order and this is normally done in terms of a settlement agreement or consent paper. The settlement agreement will be incorporated into the final divorce order and made an order of the court.  This order will determine the maintenance obligations of the parties.

SPOUSAL MAINTENANCE BY APPLICATION BY ONE SPOUSE

The Divorce Act also regulates instances when spouses do not agree on spousal maintenance and the court is then required to make a decision that is just and fair in respect of the payment of maintenance to one spouse. In making this decision the court has the discretion to make a maintenance order relating to the amount, period of payment and even if there should in fact be any maintenance order at all.  To make this decision the court takes various factors into account, namely:

• the existing or prospective means or income of the party;
• their respective earning capacities;
• their individual financial needs and obligations;
• the age of each spouse;
• the duration of the marriage;
• the standard of living of the Parties before the divorce;
• their conduct as far as it may be relevant to the breakdown of the marriage;
• any factor which the courts think should be considered.

The above factors are assessed together and each one is equally as important as the next.  Furthermore, the court’s discretion is solely based on the presented facts before the court and is decided on its own merits.

In the case of Venter v Venter, the court refused to grant a 57-year-old woman permanent maintenance and stated that “the idea that marriage ought to provide a woman with a “bread ticket” for life is on its way out…”. This indicates that the courts favour a “clean break” divorce and are very reluctant to grant permanent spousal maintenance.

Spousal maintenance after divorce is therefore rarely a permanent arrangement and should rather be seen as an interim solution relating to financial requirements.

SPOUSAL MAINTENANCE PENDING A DIVORCE ORDER

Should a spouse require urgent relief in the form of maintenance pending divorce proceedings, the spouse may bring an application in the High Court in terms of Rule 43 of Uniform Rules of the High Court or the Regional Magistrates Court in terms of Rule 58 of the Magistrates Court Rules. This will be interim relief, the only requirement will be that a summons must already have been issued and served.

VARIATION OF A MAINTENANCE COURT ORDER.

A spousal maintenance order made by the court is final, however, it may in certain circumstances be varied when a material change occurs to either spouse’s financial situation. This means that the amount the one spouse pays can be amended based on various reasons. An example of material changes would be a loss of income or a deduction of salary by the party paying maintenance.

A maintenance order is an order of the court and cannot be changed unilaterally by one party or even by agreement between the parties.  Spouses are also entitled to approach the maintenance court to have the spousal maintenance reduced or increased in the event that their financial position changes, once an order is already in place.   Failure to perform in terms of a maintenance order is a criminal offence and may have dire consequences for the defaulting party.