Divorce Article 12: Maintenance for the former spouse.

In our previous article, we briefly discussed the rights of the non-custodial parent in divorce proceedings. In this article, we shall consider maintenance for the former spouse.

This article is applicable when the parties have failed to reach an agreement on maintenance between themselves. For maintenance for minor children or agreed upon maintenance please refer to our previous articles.

In instances where the parties are unable to reach a maintenance agreement, the Court will be required to make an order which the Court finds just in respect of the payment of maintenance by one party to the other. This can be until the death of the party due maintenance or until remarried, whichever occurs first, alternative for a specific period, for example, 3 or 5 years.

The following are the factors that the Court will take into consideration in terms of Section 7(2) of the Divorce Act 70 of 1979 (“the Act”) when considering a request for maintenance:

  1. the existing or prospective means of each of the parties;

  2. their respective earning capacities;

  3. financial needs and obligations;

  4. the age of each of the parties;

  5. the duration of the marriage;

  6. the standard of living of the parties prior to the divorce;

  7. their conduct in so far as it may be relevant to the break-down of the marriage;

  8. an order in terms of marriage out of community of property; and

  9. any other factor which in the opinion of the court should be taken into account.

It should be noted that despite the Act and the role of the Courts there are no absolute rules about permanent maintenance and whether or not a party can be forced to work after divorce. Therefore each case must be considered and decided by its own circumstances. This will be at the discretion of the Court taking the above into account.

Furthermore, the Court is required to make a maintenance order that is just in the circumstances of the matter before it. This however does not entail that the maintenance order is required to establish financial equality between the parties.

Finally, it is important to note that when considering maintenance a party may share in the pension interest of the other.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.

In our next article, we shall continue to discuss maintenance in regards to the award of a redistribution order. This is relevant in instances where the parties have concluded an ante-nuptial contract.