Lecture 16

Question 1

Dissolution of union

Answer 1

1) Common law duty
2) New statutory duty

Question 2

General principles applicable to both
orders

Answer 2

1) Order can only be made during
divorce proceedings, not at a
later stage.
2) Maintenance order can lapse
automatically
3) Periodical maintenance is the
norm (Zwiegelaar v Zwiegelaar;
Oshry v Feldman)

Question 3

Section 7(1):

Answer 3

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

Question 4

S 7(1)

Answer 4

1) Agreement
2) Parties decide

Question 5

S 7(2)

Answer 5

1)No agreement
2) Court decides

Question 6

Section 7(2)

Answer 6

1) Respective earning capacities
2) Rehabilitative maintenance

Question 7

Two general requirements
for a maintenance claim

Answer 7

1) Need for maintenance
2) Ability to provide maintenance

Question 8

Token maintenance

Answer 8

1) A maintenance order can only be granted during the divorce proceedings
2) Court foresees the possibility that a
spouse will develop a need for
maintenance in future.
3) Why does a spouse then not IN ALL
INSTANCES ask for token maintenance for in case he/she needs it later?
* Qoza / Buttner cases

Question 9

Situation 1

Answer 9

1) No need for maintenance at the
time of divorce:
(e.g. spouse suffers from
debilitating diseases such as MS at
the time of divorce but can still
work)

2) But future need for maintenance
anticipated:
(e.g. illness will eventually make it
impossible for spouse to earn an
income)

Question 10

Situation 2

Answer 10

1) No ability to pay maintenance at
the time of divorce:
(e.g. husband is not employed at
the time of divorce while wife
needs maintenance from husband)

2) But expectation of means in the
future:
(e.g. husband foresees that he will
be able to gain employment in the
near future)

Question 11

Variation of maintenance orders

Answer 11

Sec 8 (1) of Divorce Act: “sufficient reason’’

Question 12

Primary consideration is usually changing circumstances:

Answer 12

1) Remarriage of party liable to pay maintenance; and
2) Life partnership of party entitled to maintenance

Question 13

Termination of maintenance orders

Answer 13

1) Death or remarriage of
person entitled to maintenance
2) Death of person liable
for maintenance

Question 14

Death or remarriage of
person entitled to maintenance

Answer 14

1) S 7(2) order lapses
2) S 7(1) does not specify
3) Odgers v De Gersigny

Question 15

Death of person liable
for maintenance

Answer 15

S 7 (2): Hodges v Coubrough
* S 7(1): Els v Jagga

Question 16

1) Maintenance Act 99 of 1998

Answer 16

1) Maintenance stante matrimonio
2) Any maintenance in arrears

Question 17

Maintenance Act 99 of 1998
STEPS

Answer 17

1) Lay complaint with maintenance officer

2) Maintenance officer will investigate
complaint as prescribed in Act

3) May decide to institute an enquiry in the maintenance court

4) Maintenance court will make one if the orders specified

5) A person may appeal against such order to the high court

Question 18

What if there is an existing maintenance order but
spouse fails to comply with the order ?

Answer 18

1) Warrant of execution against
property of debtor
2) Order for attachment of emoluments
3) Order for attachment of debt
4) Order for attachment
of any pension, annuity, gratuity etc.