In this article, Simpsons Attorneys discusses spousal maintenance as regulated by the Divorce Act, Act 70 of 1979.
Divorce can be stressful enough without having to worry about how you are going to pay the bills.
However, the reality is that one party in a divorce may suffer financially during and after the divorce, and it helps to be aware of the process involved in awarding maintenance.
If the two parties can agree on the issue of maintenance or if a written agreement was signed before the divorce, then the issue is settled.
However, should this not be the case, either party may apply to the court for an interim maintenance order pending the finalisation of the divorce.
A party may seek the intervention of a court and launch an application for interim relief in terms of Rule 43 in the High Court.
The scenarios in which the court might agree to award spousal maintenance include, but not limited to, where one spouse lost his/her job, was a home-maker with no income or does not have immediate or future financial means to support herself/himself for a specific reason.
In considering maintenance, the court takes the following factors into account:
- The spouses’ existing or prospective means;
- The spouses’ respective earning capacities;
- The spouses’ financial needs and obligations;
- Each spouse’s age;
- The duration of the marriage;
- The spouses’ standard of living during the marriage;
- Each spouse’s conduct in so far as it may be relevant to the breakdown of the marriage;
- Any redistribution order in terms of sec 7(3) of the Act (Spouses married out of community of property before 1984);
- And any other factor which, in the court’s opinion, should be taken into account.
Let’s learn more about what to expect, in practical terms, from this process.
What documents are needed?
The court would need documents reflecting the applicant’s financial position and in particular her / his income as well as any financial obligations and needs.
It is recommended that the applicant draws up a detailed monthly budget schedule, as these details are used in support of any claim for interim (short-term) maintenance.
Furthermore, if the applicant is in need of immediate short-term financial support, for example, to obtain housing, then they should produce proof of any reasonable expenses that they might need.
There might also be other reasonable expenses, such as basic furniture and the costs hereof should be included in the application.
The court will also consider the respondent’s financial position. In other words, can the other spouse actually pay the interim maintenance or not. It would be helpful if documentation detailing income, such as payslips or proof of other sources of income be provided to support the application.
Personal assets of the respondent should be stated in the application to be taken into consideration by the court.
Your legal representatives should be able to guide you and assist with getting all the necessary paperwork in order.
What to expect from the actual court process
It is practice for both spouses to be present in court, along with their legal representatives, when the matter is heard in court.
This makes the whole process easier should additional evidence/information be required by court from the parties at the time of the hearing.
The legal representatives may take direct instructions from their respective clients in these circumstances.
How long will the whole process take?
It is difficult to give an exact timeline, as this depends on whether the claim is opposed or unopposed.
If it is unopposed, meaning that the respondent does not reply or file any opposing papers, then the matter can be set down after ten days have lapsed in terms of the court rules.
The date for the hearing will then be obtained from court.
If, however, it is opposed, and the respondent files an opposing affidavit or brings a counter application in the same affidavit, the whole process can be very drawn out.
Will maintenance be awarded?
If the court is so satisfied, then a maintenance order is made on the same day.
If the court is not satisfied, the court also has the discretion to request further evidence/information as it considers necessary and may make such an order as the court thinks fit to ensure a just and speedy decision.
What can your attorney do for you?
Your legal representatives are familiar with court practises and the amount of information and supporting documentation required for such applications.
This places you in a better position than anyone who decides to take matters into their own hands.
Your legal representatives will ensure that the application is in order to make out a proper case and obtain a satisfactory court order.
Anyone trying to litigate for themselves runs the risk of facing postponements due to papers not being in order or lacking substance.
In short, your attorney can help you prepare well, can argue effectively on your behalf, and facilitate a fair and speedy resolution to your maintenance application.