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Interim Maintenance under Divorce Act

The duty to pay spousal maintenance post-divorce is found in Section 7 of the Divorce Act, 70 of 1979. This duty arise in two ways:

Interim Maintenance
 


Section 7(1) of the Act provides that the court, when granting a decree of divorce, may in accordance with the written agreement between the parties, make an order with regard to the payment of maintenance by one spouse to the other. This is usually in the case where a settlement agreement is entered into between the parties prior to finalisation of the divorce.​

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In terms of Section 7 (2) of the Act and in the absence of a written agreement (settlement agreement) the court may make an order which it finds just in respect of the payment of maintenance by the one spouse to the other by taking various factors into account. The court is required to consider the factors referred to in section 7(2) in order to decide, firstly whether maintenance is to be paid at all and, if so, the amount to be paid and the period for which maintenance is to be paid.

It is significant to note that the word “may” is used in the Act. It is therefore clear that awarding post-divorce spousal maintenance is purely discretionary and there is therefore no automatic right to maintenance on divorce and a party who claims maintenance must prove that he or she is entitled to maintenance. In terms of Section 8 of the Act a maintenance order may at any time be varied, rescinded or suspended.

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Factors that a court will consider when awarding post-divorce spousal maintenance.

Section 7(2) of the Act deals with the factors that a court will take into consideration when awarding maintenance. These factors also come into play when maintenance is negotiated between the parties or during a mediation process which precedes the drafting of a settlement agreement between the parties.

The respective earning capacities of the parties.

After the divorce, the parties should become economically independent of each other as soon as possible. Generally, our courts will always attempt to achieve a complete termination of financial dependence of one spouse on the other if the circumstances permit. This is called the clean-break principle. Where a woman is earning enough or has sufficient income from assets to support herself and maintain her standard of living, the court will generally be reluctant to award maintenance in her favour. A court will not award maintenance in cases where the woman is young, well qualified, has no children or no young children, has worked through all her married life and is in good health, and where the marriage was not of long duration. 

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Where both spouses worked during the subsistence of the marriage their respective incomes must be taken into account to determine whether or not each party will be able to meet his/her own maintenance needs. The court will look at income from all sources, including tax credits, dividends and fringe benefits. In K v K if was held that the division of roles in families influences not only the past earning capacity of the parties, but also their future earning capacities. The judge in this case also made comment that the courts do not today distribute maintenance with any degree of liberality to woman who can and ought to work after divorce and that in our law no maintenance will be awarded to a woman who can support herself. 

A contrary view was taken in the matter P v P 1990 (1) SA 998 (E) where the judge warned that there is a vast difference between the situation where a woman is indeed able to maintain herself because she is in fact working or in fact has assets from which she can support herself and the situation where a notional earning capacity has to be attributed to her. A woman’s ability to earn an income does not by itself this entitle her to maintenance since the reasonableness of her decision not to work must be considered in light of factors such as age, state of health, qualifications, when she was last employed, the duration of the marriage, the standard of living of the parties during the marriage, and a commitment to the care of young children and others. 

 

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This position was confirmed in the matter of K v K2006 (6) SA 127 (C) where the court considered a wife’s decision to remain working only in a part-time capacity to be reasonable since this would be in the best interests of the children. The court also mentioned that when it considers the earning capacity of the parties, it must take note not only of the emancipation of women but also of the fact that the division of roles in families influence not only the past and incapacity of the parties but also the future earning capacity.

The financial needs and obligations of the parties.

In K v K 1986 (4) SA 616 (E) the court stated that this factor means how much money each party needs for their day-to-day living, and how much of the income or resources of each has to be spent for some obligatory purpose. In B v B 2009 (2) SA 421 (C) a case dealing with an application for interim maintenance for the wife and the parties two adult children who resided with a wife, the judge found that in having to use her household budget to run the family home and provide groceries for a 3 member household, the wife incurred an obligation within the meaning of section 7 (2) of the Act. 

What constitutes a need for a specific party will naturally depend on the standard of living of the couple during the marriage. What is considered to be a need in one family may be considered a luxury in another. A distinction must further be made between the parties’ needs and wants. 

 

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It was held in N v N 1984 (2) SA 294 (C) that: ‘A proper weighing of all these factors is important to counter-balance the inherent immorality that could follow were the sole or even the main criterion for a claim for maintenance to be the plaintiff’s need or ability to maintain herself’.
 

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It was held further that: ‘Had the Legislature intended to preserve the common law and limit maintenance in accordance with a wife’s ability to maintain herself … the Divorce Act could encourage immorality in many ways. It could then be the middle-aged libertine’s charter of freedom. A man could throw out the woman who had shared his bed, ran his home, and reared his children, after twenty years or so, replacing her with something younger and prettier, and claim that his wife is not entitled to maintenance because during twenty years of minding his home and family she had also earned money outside that home … and could now that the children were off her hands work that much harder.

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On the other hand it would be equally unjust that an indigent woman unable to earn much money could marry a wealthy man, walk out of her wifely duties and try to use him as a meal-ticket for life … I can think of no reason why a blameless husband who has sacrificed his own career advancement and along with it income and pension benefits, in favour of his wife’s, should not be entitled to a contribution towards his maintenance from her, merely because he would not starve without’.

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