Divorce Article 12: Maintenance for the Former Spouse.

maintenance by one party to the other. This can be until the death of the party that is due maintenance or until remarried, whichever occurs first, alternative for a

specific period, for example, 3 or 5 years.

The following are the factors

that the Court will take into consideration in terms of Section 7(2) of the

Divorce Act 70 of 1979 (“the Act”) when considering a maintenance request:

the existing or prospective means of each of

the parties;

their respective earning capacities;

financial needs and obligations;

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 in so far as it may be relevant

to the break-down of the marriage;

an order in terms of marriage out of community

of property; and

any other factor which in the opinion of the

court should be taken into account.

It should be noted that

despite the Act and the role of the Courts there are no absolute rules about

permanent maintenance and whether or not a party can be forced to work after

divorce. Therefore each case must be considered and decided by its own circumstances.

This will be at the discretion of the Court taking the above into account.

Furthermore, the Court is

required to make a maintenance order that is just in the circumstances of the

matter before it. This however does not entail that the maintenance order is

required to establish financial equality between the parties.

Finally, it is important to

note that when considering maintenance a party may share in the pension

interest of the other.

In our next article, we shall continue

to discuss maintenance regarding the award of a redistribution order. This

is relevant in instances where the parties have concluded an anti-nuptial

contract.

Related Practice Areas: Maintenance & Spousal Support | Asset Division

If you have questions about your specific situation, contact Nick Elliot for a confidential consultation.