What is Spousal Maintenance?

In the intricate landscape of South African family law, spousal maintenance emerges as a critical aspect, deeply entrenched within the Divorce Act, specifically under the notable Section 7(2). This provision sets the groundwork for the "Division of assets and maintenance of parties," providing a legal scaffold for the financial support between spouses post-divorce.

The Divorce Act

The essence of Section 7(2) is eloquently captured in its wording:

“In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.”

This statutory provision highlights the absence of a pre-nuptial or divorce agreement, necessitating a spouse to substantiate their need for maintenance, incorporating a myriad of factors outlined in Section 7(2). The court's role is to judiciously weigh these considerations, determining the necessity and extent of spousal maintenance. Importantly, while certain elements such as the spouses' ages, the marriage's duration, and their earning capabilities often take center stage, the Divorce Act emphasizes a balanced approach, ensuring no single factor overwhelmingly influences the maintenance decision. This comprehensive evaluation reflects the law's flexibility and the court's broad discretion in tailoring maintenance awards to the unique circumstances of each case, underscoring the nuanced nature of spousal maintenance within South African divorce proceedings.

In evaluating spousal maintenance during divorce proceedings, several key factors come into play, none of which holds precedence over the others. Their collective consideration ensures a fair and equitable determination of maintenance awards. The following factors are considered:

1. Financial Resources and Prospects

   The court scrutinizes both current and future financial capabilities of each spouse, including assets, employment, income, secondary revenue streams, investments, and property ownership. This thorough assessment helps in understanding each party's financial standing and potential.

2. Earning Potential

   A critical aspect of spousal support deliberation is assessing each spouse's current income and future earning prospects. The aim is to foster financial independence, reducing or eliminating dependency on the other spouse over time.

3. Financial Needs and Obligations

   Individual financial needs and obligations are considered on a case-by-case basis, recognizing the distinct requirements and responsibilities of each spouse. This evaluation distinguishes between essential needs and additional wants.

4. Lifestyle During the Marriage

   The couple's standard of living prior to separation significantly influences maintenance decisions, aiming to sustain a comparable lifestyle post-divorce. This includes evaluating everyday expenses, holiday frequency, medical costs, and other lifestyle-related expenditures.

5. Age Factor

   The duration of the marriage and the age of the spouses are pivotal, especially in cases where long-term marriages end, and one spouse might not have current work experience or is of an age that makes reentering the workforce challenging. In such scenarios, maintenance awards are carefully considered to ensure fairness.

6. Conduct and Breakdown of Marriage

   While the court examines the behaviors contributing to the marriage's dissolution, such as desertion or adultery, these factors are not decisive in the determination of spousal support but are part of a broader context.