What is spousal maintenance?
Category FAQ's
Family Law
I am a 45 year old stay at home mom busy going through a divorce from my husband who is a successful businessman. Can I claim for spousal maintenance where he is refusing to pay after divorce?
What is spousal maintenance?
Spousal maintenance is maintenance that is paid by a husband or a wife to their former spouse following a divorce. Spousal maintenance is usually paid on a monthly basis and continues either for a defined period or for the remainder of the parties lives.
The Law:
It should be noted that there is no automatic right to maintenance after divorce as entitlement needs to be shown before a court determines the amount and duration of the maintenance that the claimant is entitled to. The Divorce Act is relevant and in particular Section 7(2) thereof which states that in the absence of a written agreement consenting to maintenance being paid 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.
Factors that the Court may take into account are:
The existing or prospective means and earning capacities of the parties.
The financial needs and obligations of the parties.
Their age.
The duration of the marriage.
The standard of living prior to the divorce.
Conduct, insofar as it may be relevant to the breakdown of the marriage
An order for the division of the assets.
Any other factors which the Court deems relevant.
What the Courts Say?
It is noted that these cases are decided on a case to case basis based on the relevant set of facts, however in terms of the scenario, the case of G V G 1987 (1) SA 48 (C) has reference as in the case it was stated and I quote that "Middle-aged women who have for years devoted themselves full-time to the managing of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to enable them to be trained or retrained for a job or profession. Permanent maintenance is reserved for the elderly wife who has been married to a husband for a long time and is too old to earn her own living and unlikely to remarry".
Conclusion:
In light of the above mentioned it is evident that the courts have a discretion to grant a maintenance order where they deem it necessary to do so, however that same will only be done with good cause shown by the claimant as there is no right to maintenance. The courts favour the clean break principle which essentially states that each party should maintain themselves after divorce. With this being said, a middle aged mom who has been a stay at home mom would at least be entitled to rehabilitative maintenance.
Author: Welgedacht Properties
