SPOUSAL MAINTENANCE
Spousal maintenance or alimony occurs post-divorce when one spouse becomes incumbent for the provision of financial resources for the other spouse despite the fact that they are no longer together. Spousal maintenance is largely determined by the court and various factors are considered and assessed before an application for spousal maintenance is granted. It is important to note that no spouse is necessarily automatically entitled to spousal maintenance. Substantive evidence needs to be presented in order for the court to decide whether or not the maintenance should be granted, and if so – what is deemed fair and for what duration. Spousal maintenance may at any time be altered, withdrawn or suspended, should ample motivation for such actions be provided.
Much like child maintenance, spousal maintenance is deemed a duty of support by the court, and therefore can be qualified for in accordance with Section 7 of the Divorce Act 70 of 1979. Section 7 stipulates that “a court granting a decree of divorce may in accordance with a written agreement between parties or the payment of maintenance by the one party to the other.” Should there be no predetermined written agreement or order in place, the court will then take the following factors into consideration in order to establish an order that the “court finds just in respect to the repayment of maintenance by 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 occur first.”
According to Section 7, in order to qualify for spousal maintenance, the following criteria are to be considered:
- The parties existing & prospective means
- The respective earning capacities, financial needs and obligations
- Respective ages of the parties involved
- The duration of the marriage
- The standard of living enjoyed by both parties during the marriage/prior to the divorce
- The party’s conduct/behaviour insofar as its relevance to the divorce/ breakdown of the marriage.
Ideally, after a divorce – the courts will aim at ensuring that the ‘clean-break’ principle is implemented which entails the dissolution of financial dependence on one another if at all possible. However of course, in some cases this is easier said than done – and often the dissolution of a marriage does not necessitate the end of one party’s financial dependence on another, especially if there are children involved.
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FACTORS INFLUENCING SPOUSAL MAINTENANCE:
Awarding spousal maintenance:
In accordance with Section 7 of the Divorce Act, there are other factors besides those explicitly stipulated, that influence the court’s decision to award spousal maintenance. These include:
- Whether or not the couple have children, and what the current and future requirements of the children are.
- Parental duty of support to the children resultant of the marriage. (link to child maintenance page)
- The ‘best interests’ of the children as specified by Section 15 (1) of The Maintenance Act.
- Increase/decrease in the cost of living or rate of inflation.
- Changing financial requirements of the parties involved.
Minor children will always be a great determiner in the final maintenance payment plan, and therefore must be wholly accounted for when drafting a maintenance agreement.
Child maintenance:
Child maintenance, like spousal maintenance is based upon a legal ‘duty of support’. It is every parent’s duty to support their children/dependents to the best of their abilities, which includes financially.
Child maintenance encompasses the continued provision of housing, food, clothing, medical care and education. Maintenance needs to be reassessed and updated regularly in accordance with the changing needs of the child/children as well as the financial means of the parents.
In order to accurately calculate child maintenance, the ‘reasonable needs’ of the child need to be considered as defined by Section 15 (1) of The Maintenance Act – which include the child’s age, number of people in the household and the employment status of the parents. While there is no set formula for calculating child maintenance, as a rule of thumb, a child’s share of the household expenses is generally determined by apportioning one part per child and two parts per older child and adult in the household.
How spousal maintenance is calculated:
Once it has been established by the court that a party is entitled to spousal or child maintenance, or both, the amount and the duration of the maintenance will need to be determined. In South Africa, there is not set formula used to calculate maintenance; therefore it is rather done on a case by case and ‘needs analysis’ basis.
The foundation of the maintenance agreement is based upon the financial needs of each party which encompasses both party’s respective incomes and expenditures.
If there are minor children to be considered, then this will have to be calculated and included as part of the overall maintenance plan.
In South Africa, as delineated by the Income Tax Act 58 of 1962, maintenance payments are exempt from taxation, even though they are viewed as an alternative income source.
Interim maintenance:
Interim maintenance, as the name may suggest, comes into play when a divorce is still in progress, or has yet to be finalised, and there is a need on the part of a spouse for financial support during this time. This is generally applicable in a scenario whereby one party has fulfilled the role of homemaker and therefore does not have an income.
Depending on which court the divorce is being finalised through, either Rule 58 of the Magistrate’s court or Rule 43 of the High Court can be used to provide the interim support required. In order to obtain interim support, the applicant must clearly demonstrate that they are unable to financially support themselves/dependents due to insufficient means or a lack of income. Interim maintenance can also be used to ensure that both parties also have equal legal representation in a divorce, even if one party is without an income.
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Joselowitz & Andrews Attorneys are specialist divorce and family law attorneys that are well versed in all matters maintenance. Contact us to set up an initial consultation and let’s discuss your maintenance requirements.
*Please note that the material published above is for information purpose only, and should not be taken as legal advice.
Initial consultations are charged at R1500.00. Thereafter, should you wish for us to act on your behalf, a fee is discussed and agreed upon whereafter we can move forward with your matter. We promise to get back to you as soon as possible – as we are aware that these cases are often urgent.