No matter which way you go about it, getting divorced is a hefty cost to bear, both emotionally and financially.
And the bottom line is that, more often than not, dissolving a marriage results in a drop in living standards for both parties.
A few divorce cases have even made headlines in South Africa recently, with ex-partners either being ordered to pay exorbitant maintenance costs to their former spouses, or asking the court for such relief.
Legal experts say individual cases will depend a lot on the way a couple is married, the lifestyle they lived while together, and the financial status of each partners, legal experts explain.
Simon Dippenaar of Simon Dippenaar and Associates explains that a reciprocal duty of support exists between spouses during their marriage. This is an automatic duty that arises by operation of law and, in certain circumstances, can extend beyond the marital relationship into divorce in the form of spousal maintenance.
“Spousal maintenance may be permanent, but more commonly it is rehabilitative. This allows a party, usually the wife, who devoted her time and energy to raising the children of the marriage, to re-train or bring existing skills up to speed after a career break, with a view to resuming full-time employment.”
Or, the stated period might be until the children reach the age of majority, when it is assumed the woman can re-enter the workforce. The relevant factors that the courts take into account when making an order in terms of spousal maintenance are set out in Section 7(2) of the Divorce Act 70 of 1979 and are as follows:
- the existing or prospective means of each of the parties
- their respective earning capacities
- the financial needs and obligations of each party
- the age of each of the parties
- the duration of the marriage
- the standard of living of the parties prior to the divorce
- their conduct insofar as it may be relevant to the breakdown of the marriage
One factor the court won’t consider, however, is who initiated the divorce action.
“A wife can file for divorce against her husband and still request spousal support. However, if, for example, a higher-earning wife has filed for divorce because of her husband’s infidelity or abusive behaviour, and he requests maintenance, his request may be denied on the basis of his conduct.
“The converse is also true: a wife who has been unfaithful or unreasonable and caused her husband extreme pain may be refused maintenance, even if he is the one to initiate the divorce. But cases like these are rare.”
Dippenaar says the final amount of maintenance calculated will be the result of a factual enquiry — this means that the income and expenses of the non- or lower-earning spouse are calculated to arrive at the shortfall required each month.
To enable the court to make a judgment and grant a fair maintenance order, both parties are obliged to provide the court with proof of their expenses.
“The higher-earning spouse will then need to contribute towards that shortfall in line with their affordability.”
The process, though, is not as simple as this explanation may suggest, and so he strongly recommends relevant parties consult a divorce attorney to obtain advice relevant to the specific case and legal needs.
A balancing act
The issue of spousal maintenance is quite a wide-ranging one, agrees Eduan Milner of Eduan Milner Attorneys, Notaries and Conveyancers in Cape Town, as, in short, neither spouse has a right to maintenance upon divorce. The right for a spouse to claim maintenance on divorce is a creation of statute.
“The language of Section 7(2) of the Divorce Act 70 of 1979 is clearly discretionary and the ex-spouse seeking an award has no right as such. It is solely within the court’s discretion, even if to make no award at all.”
The most important factor a court keeps in mind is the balancing act of the requirements of ‘need’ on the one hand versus the ‘ability to pay’ on the other. So there can be no hard-and-fast rules.
“The court will take the needs of the one spouse into consideration, but will weigh that against the ability of the other spouse to pay. From a practical point of view, I have found that, if the one spouse has certain maintenance needs, but the other spouse does not have the financial ability to meet them, then the court will obviously not be able to make an order whereby they are all fulfilled.”
However, if the ability to pay is there, it will be easier for the court to take into account factors such as the standard of living prior to the divorce.
“It is invariably in the situations where the one spouse has the ability to pay and they have maintained a high standard of living, that you find the larger awards.”
As an illustration, he gives an example in which the parties have been married for 20 years and the wife has left her employment to care for the children and be a home executive. Here, there would be a successful claim for maintenance.
“However, the amount will be determined by the above factors, as well as the husband’s ability to pay that amount. The duration thereof will also be determined by the ability of the wife to re-enter the workplace and earn an income. Once again, that will depend, inter alia, on her age. A maintenance claim will potentially be different for a 35-year-old woman as opposed to a 55-year-old woman, even if all the other factors are the same.”
As a further example, Milner says a 40-year-old woman who has not been employed for the last 20 years will have a potentially different claim than a 50-year-old woman who left the workplace five years ago and can very easily re-enter it.
“So it really does depend solely on the circumstances of that particular marriage.”
Just like issues relating to the matrimonial home, there are also a number of assumptions when it comes to spousal maintenance after divorce. But maintenance, says Maria Davey of Meumann White Attorneys, is about need and affordability, and “seldom happens these days”.
Rather, in cases where one ex-partner has to pay maintenance to the other, she says it is usually rehabilitative maintenance to allow one partner to upskill in order to obtain employment and be self-supporting.
“When it comes to divorce the principle of a ‘clean break’ is sought.”