Spousal maintenance or alimony occurs post-divorce when one spouse becomes incumbent for the provision of financial resources for the other spouse despite the fact that they are no longer together. Spousal maintenance is largely determined by the court and various factors are considered and assessed before an application for spousal maintenance is granted. It is important to note that no spouse is necessarily automatically entitled to spousal maintenance. Substantive evidence needs to be presented in order for the court to decide whether or not the maintenance should be granted, and if so – what is deemed fair and for what duration. Spousal maintenance may at any time be altered, withdrawn or suspended, should ample motivation for such actions be provided.
Much like child maintenance, spousal maintenance is deemed a duty of support by the court, and therefore can be qualified for in accordance with Section 7 of the Divorce Act 70 of 1979. Section 7 stipulates that “a court granting a decree of divorce may in accordance with a written agreement between parties or the payment of maintenance by the one party to the other.” Should there be no predetermined written agreement or order in place, the court will then take the following factors into consideration in order to establish an order that the “court finds just in respect to the repayment of maintenance by 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 occur first.”
According to Section 7, in order to qualify for spousal maintenance, the following criteria are to be considered:
- The parties existing & prospective means
- The respective earning capacities, financial needs and obligations
- Respective ages of the parties involved
- The duration of the marriage
- The standard of living enjoyed by both parties during the marriage/prior to the divorce
- The party’s conduct/behaviour insofar as its relevance to the divorce/ breakdown of the marriage.
Ideally, after a divorce – the courts will aim at ensuring that the ‘clean-break’ principle is implemented which entails the dissolution of financial dependence on one another if at all possible. However of course, in some cases this is easier said than done – and often the dissolution of a marriage does not necessitate the end of one party’s financial dependence on another, especially if there are children involved.