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Divorce and Spousal Maintenance

The main issue in a divorce matter not always relates to the maintenance of the minor children but very often to the maintenance of a spouse. Section 7(2) of the Divorce Act says that in the absence of agreement between the parties, the court may make an order for the payment of maintenance "for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur."; saying that the following facts should be taken into account:

"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,
and any other factor which in the opinion of the court should be taken into accoun"

Often 1 or 2 years maintenance

A party in a divorce matter would normally only be entitled to lifelong maintenance if there could be proven that the other party was the sole bread winner throughout the marriage and got him/her used to a certain standard of living which should be maintained after the divorce. One would also look at other factors such as the age of the parties and their respective qualifications, as well as the length of the marriage.

Very often in a divorce settlement one party would be ordered to pay the other party maintenance for one or two years after the divorce and no longer than that, in order to assist the other spouse financially for a couple of years after the divorce.

Proof is required

The court will want to see that evidence has been provided to prove:

the type of lifestyle which was enjoyed whilst being married.
one's current monthly financial expense obligations and needs (and earnings).
whether the spousal maintenance can be afforded, by showing how much one's spouse earns on a monthly basis.

If it ends in a court case, the court will want to see that the proof has been put before the other party, so that they have had a chance to state their opinion (ie that it can be accepted as properly tested evidence).

TS vs MLS (2024) : when the husband requests spousal maintenance

This case is also looked at in detail in an article which examines forfeiture in community of property marriages, but it is also interesting from the perspective of the husband claiming spousal maintenance. It was judged upon in March 2024 in the Gauteng/Pretoria Division of the High Court.

The husband was agreeable to getting divorced, but sought inter alia that the wife pay R15k per month maintenance to him, because she earned more than him, and because the had gotten him accustomed to a certain standard of living during the marriage.

On the matter of spousal maintenance, the judge ruled that insufficient evidence had been provided; in particular no evidence was provided:

of how much the wife earns and whether she could afford the R15k per month maintenance.
of the type of lifestyle enjoyed during the marriage, and of his monthly financial needs and obligations.

Botha vs Botha : is spousal maintenance an automatic right?

The abovementioned question was raised in the Witwatersrand Local Division, in the case of Botha v Botha (Case No 2005/25726), as recorded in our law reports at 2009(3) SA 89.

In the abovementioned case Mrs Botha in the divorce action claimed maintenance for life in the sum of R30 000 per month. Mr Botha was 50 years old and a qualified engineer. He had a son living in the U.S.A. when he married Mrs. Botha. When they married, both Mrs. Botha and her daughter moved into Mr. Botha's house. Mrs Botha was 39 years old and held a certificate in Industrial Relations from Rand Afrikaans University and was employed at South African Federated Engineering Contractors (SAFEC) , where she earned R7000,00 per month. The parties got married in 1999.

The marriage was out of community of property with the exclusion of the accrual system. Mrs Botha in the divorce action averred that her standard of living had improved after the marriage. She had rented a property prior to the marriage and had moved into a house owned by Mr. Botha after the marriage.

The court in this case looked at what Mrs. Botha's expenses were in order to determine whether she should be entitled to maintenance. Documentation revealed regular and substantial purchases of alcohol. She admitted that she drinks nearly a bottle of wine each night. Cashmere clothing and French-manicure gel nails were included in her expenditure. She testified that she purchases mineral water because she “doesn't drink plain water”. Many magazines were purchased each month, and she regularly went out for meals with two or more people. She justified all these expenses on the grounds that “I lead a very active social life” and “why not?”.

The court in this case found that Mrs. Botha had not established a marital lifestyle in which she is entitled by law to be maintained. Her claim for maintenance for herself was dismissed. The court found further that Mr. Botha bears no legal responsibility for Mrs. Botha's daughter.

In the abovementioned case the independent lives establied by the parties into middle age, the duration of the marriage, the employment of the claimant prior to, during and after the marriage, the claimant's responsibilities for an adult daughter combined with their refusal to seek any assistance from the co-parent of that daughter, the absence of evidence as to the costs of the marital lifestyle established and enjoyed by cohabiting parties and the extravagance of the lifestyle established by the claimant after she and her spouse had seperated were amongst the factors taken into account in assessing the claim for maintenance.

What is particularly interesting about this case, is that the judgement confirms that, taking into account so-called “clean break” and constitutional principles, there is no automatic right to maintenance after a divorce. Entitlement to maintenance must first be shown before a court can determine the quantum and duration thereof.

Gibbs vs Gibbs

South African cricket player, Herschelle Gibbs, went through a divorce after a year of marriage. His wife in court papers claimed that her monthly living expenses including the cost of maintaining the house amount to R96 950,00. In a recent High Court matter his wife requested the court to stop him from taking away a credit card and access to his bank accounts. Gibbs was ordered to pay maintenance until at least August, the next court date.

Although Gibbs’ wife claims that he was verbally abusive and abused alcohol, he alleges that he was naïve when he married her.

In this specific case the parties were married for one year only and this would definitely be taken into account in determining any personal (spousal) maintenance for Mrs. Gibbs. It would not seem as though she would be entitled to personal maintenance for a life time.

Divorce Act: Division of assets and maintenance of parties

"7.(l) A court granting a decree of divorce may in accordance with.a.written agreement between the parties make an order with regard to
the division of the assets of the parties or,
the payment of maintenance by the one party to the other.

7.(2) ln the absence of an order made in terms of subsection (1). with regard to the payment of maintenance by the one party to the other, the court may, having regard to
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,
and any other factor which in the opinion of the court should be taken into account,

make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur."

Wife holding money notes like cards with more money floating above husband

It is certainly advisable to hire an expert maintenance lawyer if you are getting divorced and spousal or child mainentance is at play.

Divorce and Spousal Maintenance

Often 1 or 2 years maintenance

Proof is required

TS vs MLS (2024) : when the husband requests spousal maintenance

Botha vs Botha : is spousal maintenance an automatic right?

Gibbs vs Gibbs

Divorce Act: Division of assets and maintenance of parties

Other divorce-related articles

At the beginning

Psychological issues

Child-related divorce matters

Annexure A

Custody of children upon divorce

Child custody post divorce

Maintenance for children

Maintenance for spouse

Abduction & kidnapping of children

International divorces, children & overseas issues

Other child-divorce matters

Affairs

Assets/debt and divorce

Divorce & pension fund assets

Property and divorce

Life insurance, death & divorce

Divorce & future expenses

Marriage (COP vs ANC), cohabition and Universal partnerships

Divorce orders

Perjury & forgery

Divorce courts

Annulment instead of divorce

Family, Estate & notarial legal services

Ask legal questions about divorce here. We would love to assist.