Section 7(2) of the Divorce Act empowers a court which orders a divorce to make an order which it finds just, of maintenance by one party to the other for any period of time until the death or remarriage of the party in whose favour the maintenance order operates. Either spouse can be ordered to pay maintenance to the other.
As this section couples the divorce with a maintenance order, an order can’t be made in favour of a former spouse after the marriage has been dissolved. A courts approach is to take each case on its own merits and peculiar circumstances, and to decide what is fair.
Factors to take into account
Factors which the court must take into account are:
- The spouses’ existing or prospective means.
- The spouses’ respective earning capacities.
- The spouses’ financial needs and obligations.
- Each spouse age.
- The duration of the marriage.
- The spouses’ standard of living during the marriage.
- Each spouses’ conduct relevant to the breakdown of the marriage.
- Any redistribution order in terms of section 7(3) of the Divorce Act.
- Any other factor which in the courts’ opinion needs to be taken into account.
The courts no longer favour the opinion of old, namely if one spouse is wealthy the other spouse should be kept according to the way in which they have become accustomed after divorce or entering the job market!
Therefore, the courts normally accept that both spouses’ standard of living has to drop after a divorce, however in reality it is usually the wife who suffers the biggest drop in standard of living.
Courts have become conservative these days when awarding maintenance, tending to favour the clean break and award rehabilitative maintenance or no maintenance at all. Misconduct which contributed to the divorce is taken into account, as well as child care responsibilities of the spouse claiming maintenance, best interests of the children etc. Women who have paying jobs these days are increasingly denied maintenance, especially if they are able to meet their own maintenance needs.
Spouses who do not work but still have employment prospects are actually given a limited maintenance until they have retrained and find employment or have had time to find employment that will cover their own maintenance.
The factors which a court takes into account to determine whether the wife should enter the labour market include her age, health, duration of marriage, standard of living during the marriage, the length of unemployment of the wife, whether she has any employable skills and child care commitments.