THE OBLIGATION OF POST-DIVORCE SPOUSAL SUPPORT.
When it comes to divorces, things may get heated, a prevalent concern in divorces is the loss of financial support formerly provided by a spouse throughout marriage. The mutual obligation to assist one another is one of the fundamental tenets of marriage. The male spouse is frequently expected to provide appropriate support for the female spouse, however societal norms have evolved significantly since our patriarchal past, and female spouses appear to have the same level of reliance as their male counterparts in a lot of situations.
Spousal maintenance is a claim for financial support during or after the breakup of a marriage. The Divorce Act, 70 of 1979 (“the Act”) allows a spouse to seek maintenance after divorce in two way; by consent and by court order.
Spousal maintenance by consent
Section 7(1) of the Act provides for situations in which payment of maintenance can be reached with the consent of both spouses. As a result, the Court may grant a decree of divorce incorporating the written Settlement Agreement (consent paper) entered into between the spouses during the subsistence of the marriage, in which it is ordered that one spouse pay maintenance to the other.
Spousal Maintenance by Order of the Court
In the absence of a documented settlement agreement between the parties, the Court may make an order in respect of maintenance payment that it deems just and equitable. Section 7(2) of the Act requires the court to consider the following reasons when exercising its discretionary power:
- Each party’s existing or potential means;
- Their respective earning capacity;
- Financial requirements and commitments;
- The ages of both parties;
- The length of the marriage;
- The parties’ standard of living prior to the divorce;
- Their behavior inasmuch as it may be related to the breakup of their marriages; and
- Any other circumstance that the court believes should be considered.
Considering the aforementioned, it is essential that spouses are informed that, following a divorce, they can be legally required to support their former spouses until their death or remarriage, whichever comes first. This is conditioned on the former’s ability to demonstrate, in accordance with Section 7(2), that there is a genuine need for said maintenance.
