Can My Ex Claim Maintenance After Divorce | Family Law Attorneys in Randburg and Sandton

Can My Ex Claim Maintenance After Divorce

Spousal maintenance is maintenance that is paid by a husband or a wife to their former spouse following a divorce. Spousal support is separate from child maintenance.

Spousal maintenance can be paid every month for a fixed period or for an indefinite period.

Many years ago, it was the norm for women to get spousal maintenance until death or remarriage. However, society has changed and, in most instances, both women and men now work fulltime.

The Courts nowadays prefer making rehabilitative maintenance orders where there is a clear need for spousal maintenance. This means that a Party may receive support for a year or two after the divorce.

If the Court makes an order that one Party must make monthly payments to the other and there is a change in circumstance of the one Party, they can always go back to the maintenance Court to ask for a reduction or an increase of spousal maintenance – this means that their relationship continues long after the divorce. This is most certainly not an ideal system.

This is the reason why many Judges and Divorce Lawyers prefer the so-called "clean break" principle where one Party that may have a duty to support their spouse instead make a lump sum payment in full and final settlement of all spousal maintenance claims to that spouse.

No person is automatically entitled to spousal maintenance, and you must first prove your claim before a Court will decide as to what support must be paid and for how long.

Spousal maintenance is regulated by Section 7 of the Divorce Act, 70 of 1979. This act indicates that spousal maintenance can arise in two ways:

Section 7(1) of the Act states that on granting the decree of divorce, the Court may in accordance with a written agreement between the Parties make an order with regards to the payment of maintenance by the one party to the other party.

In terms of Section 7 (2) of the Act and in the absence of a 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 will consider the factors referred to in section 7(2) to decide if maintenance is payable and if so in what amount and for what duration.

These factors include the following:

  • Having regard to the existing or prospective means of each Party;
  • Their respective earning capacities;
  • Their individual financial needs and obligations;
  • The age of each of the Parties;
  • The duration of the marriage;
  • The standard of living of the Parties before the divorce;
  • Their conduct as far as it may be relevant to the break-down of the marriage;
  • Any other factor which the Court think should be considered.

The payment of spousal maintenance is not a simple, clear cut issue and will be determined based on the above factors.

 

Martin Vermaak

Practising Attorney