Chapter 11 - Maintenance of a spouse after divorce Flashcards
Factors the court must take into account
- The spouse’s existing or prospective means
- The spouse’s respective earning capacity
- The spouse’s financial needs and obligations
- Each spouse’s age
- The duration of the marriage
- The spouse’s standard of living during the marriage
- Each spouse’s conduct in so far as it may be relevant to the breakdown of the marriage
- Any distribution order in terms of section 7() of the Divorce Act
- Any other factor which, in the court’s opinion, should be taken into account.
The movement towards rehabilitative maintenance or no maintenance
In the past, women were usually dependent on their husbands, and it was generally accepted that a husband had o maintain his former wife until she remarries or her death especially if the dissolution of the marriage was his fault. This position has changed. In Botha v Botha the court described the purpose of rehabilitative maintenance as enabling the spouse who has been disadvantaged or disabled in some way by the marriage…through training and therapy.
Lump-sum maintenance
In Zwiegelaar v Zwiegelaar the SCAt took the first step towards lump-sum maintenance awards by holding that a spouse may be ordered to pay the monthly maintenance as well as a lump sum for household necessaries
Token or nominal maintenance
If there is no reason to make a maintenance order at the time of the divorce, but it is foreseen that one of the spouses may need maintenance at some future/or that the maintenance debtor will be able to meet the claimant’s existing maintenance needs at some stage in the future, the court may take an order for a token or nominal maintenance.
Rescission, suspension and variation of maintenance
In Cohen v Cohen the SCA held that if a Maintenance Court simply varies the amount of maintenance which payable in terms of an existing High Court.
The meaning of sufficient reason for purposes of section 8(1) of the Divorce Act 70 of 70 of 1979
The expression “sufficient reason” that is used in section 8(1) of the Divorce Act is not definable. Whether sufficient reasonis present is a factual question which mustbe answered in view of the circumstances of each case. The applicant bears the burden or proving that sufficient reason exists.
Termination of a maintenance order
- An order in terms of section 7(1) of the Divorce Act 70 of 1979
- An order in terms of section 7(2) of the Divorce Act 70 of 1979
An order in terms of section 7(1) of the Divorce Act 70 of 1979
It comes to an end on the date or upon the occurrence of the event stipulated in the settlement agreement between the spouses
An order in terms of section 7(2) of the Divorce Act 70 of 1979
It comes to an end:
- on the date stipulated in the order
- on the death of the maintenance recipient
- on the remarriage of the maintenance recipient
- according to the decision of the Supreme Court of Appeal in Kruger v Goss, on the death of the maintenance debtor