Maintenance in respect of a minor child may be claimed at any given time, whether it be through divorce proceedings or through the maintenance court once biology has been established or any other form in terms of the law. With spousal maintenance, it is different, as the phrase implies, a spouse may need to claim at divorce proceedings. Upon divorce, a spouse may be able to claim spousal maintenance if there is a need and must do so at divorce as failure to do so may have dire consequences if there is an actual need.
How spousal maintenance can be claimed
Upon divorce, one of the spouses to the divorce may not be self-supporting and may need the help of the other spouse until such spouse becomes self-supporting. In terms of section 7(1) of the Divorce Act 70 of 1979 as amended(hereinafter referred to as the "Act"); the parties may agree to the division of the estate and spousal maintenance at divorce proceedings. Should the parties agree by way of a settlement agreement, such settlement agreement if just will be made an order of the court. On the other hand, should the parties be unable to agree on spousal maintenance or the amount to be claimed, the court may in terms of section 7(2) after considering the relevant factors make and order which is just in respect of payment of spousal maintenance. The factors the court may take into consideration in arriving at an order may include but are not limited to: the age of the respective parties and their respective conduct in as far as it relates to the irretrievable breakdown of the marriage.
Forms of spousal maintenance
Our courts have moved away from permanent spousal maintenance and have been leaning more towards rehabilitative maintenance. A party to a divorce who is unemployed but can secure employment may be a good candidate for rehabilitative maintenance. Rehabilitative maintenance will allow a spouse to obtain training or prepare to enter the labour market again. The maintenance payments will normally gradually decrease with time. A party who is unable to secure employment due to age may be a good candidate for permanent maintenance until the party dies or remarries. Nominal or token maintenance may be appropriate where the spouse does not need maintenance at divorce but may need financial assistance at a time in the future; the court may grant a minimal amount such as R1 per month. This will allow the spouse, which may need financial assistance in the future to apply for an increase to a more substantial amount. A spouse is unable to claim maintenance if no order of maintenance was made at the time of the divorce – the proverbial token. Even with token or nominal maintenance, the court still has to consider the factors as listed under section 7(2) of the Act in arriving at a just order.
Conclusion
It is therefore imperative that a spouse in need of maintenance claims at divorce as claiming after divorce will not be possible. Furthermore, with regards to the amount, our courts have found that a spouse cannot be required to maintain two households and it is reasonably expected that both spouses' standard of living will drop after divorce. These are some of the factors important to establish the amount of maintenance.
Originally published July 16, 2020
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