Legal Articles

A reciprocal duty of support exists between spouses during the subsistence of a marriage. This duty is premised on the questions of need, ability and means to provide such support.

This was the view of the Court and confirmed in Oberholder vs Oberholder 1947 (3) SA 294 (O). In Booysen vs Minister of Home Affairs 2001 (4) SA 485 (CC) the Constitutional Court upheld that legislation which prevents spouses from fulfilling their duties of support violates the dignity of both spouses.

The extent of such support largely depends on the means, need and standard of living of the spouses concerned.

Reciprocal Duty of Support Between Spouses

Historically, the then deep-rooted practice of patriarchy instilled the reality of men having better economic power as compared to women. The prevailing transformation of socio-economic and legal dynamics is aimed at achieving a society where both genders have equal access and opportunity to economic power.

The fruits of such interventions will take time to be fully realised hence in most marriage relationships today, males still enjoy better economic power as compared to females in heterosexual marriages.

Despite which spouse would have contributed more to the breakdown of the marriage relationship, often the one with less economic power will be the most economically affected after the marriage relationship dissolves.

Spousal Support After Divorce

Our Courts favour the “clean break” principle when spouses divorce so that each party can move on with their lives independent of the other. In so far as that is the case, it happens mostly that the party with less economic power will not be ready for such an economic shift.

In some marriage relationships the reciprocal duty of support and sharing of responsibilities result in one spouse having to hold back career and educational opportunities in order to discharge matrimonial home responsibilities.

This then means whilst the other spouse was advancing their career and educational qualifications, the other spouse was taking care of essential matrimonial responsibilities for the common good. It becomes persuasive to then argue that it does seem unfair not to recognize such contribution in as much and even as it did not translate to monetary gain in the common estate.

This is one of the many deliberations the legislature considered in coming up with legislative provisions in Rule 43 of the Uniform Rules of the High Court, Rule 58 of the Magistrate’s Court Rules as well as Section 7(1) and (2) of the Divorce Act 70 of 1979.

The Divorce Act of South Africa and Maintenance after Divorce

While Rule 43 of the High Court and Rule 58 of the Magistrate’s Court provide for, upon plea, spousal maintenance during the divorce process, Section 7(2) of the Divorce Act provides for spousal maintenance after the divorce has been finalized.

It is trite that South African law does not recognize an automatic right to spousal maintenance after divorce, it is incumbent on the party claiming spousal maintenance to convince the Court that there is real need for such maintenance and that the party claimed from has the means, capacity, and ability to provide such support.

Should the spouses not settle on the issue of post-divorce spousal maintenance themselves as per Section 7(1), the Court itself has discretionary powers (as clearly seen in the language of the provisions) with regards to a prayer for spousal maintenance.

In that pursuit the Court is guided by considerations contained in Section 7(2) of the Divorce Act in the exercise of such discretion:

1. Existing or prospective means of each of the parties
2. Their respective earning capacities
3. Financial needs and obligations
4. The age of each of the parties
5. The duration of the marriage
6. The standard of living of the parties prior to the divorce
7. Their conduct in so far as it may be relevant to the breakdown of the marriages and
8. Any factor which in the opinion of the court should be considered

Van Deventer and Van Deventer Incorporated – Family Law and Divorce Attorneys South Africa

In conclusion, even though the Courts favour the clean break principle to ensure that spouses are independent of each other after the finalisation of divorce, discretionary powers exist for the Court to consider granting spousal maintenance from the time of divorce until the supported party remarries, passes away, repudiates such support, a definite timeframe or any such other directive the Court deems just under the circumstances.

It is therefore imperative that spouses seek legal assistance to navigate through the delicate process of divorce and maintenance. Contact us for advice.

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