How maintenance orders are determined

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The relevant legislation which is applied when considering a spouse's maintenance claim is section 7 (2) of the Divorce Act 70 of 1979, which provides that a court that is granting decree of divorce may make a maintenance order in a favour of one of the spouses after taking into consideration the following factors:

1. their existing or prospective means
   
2. their respective earning capacities
   
3. their financial needs and obligations
   
4. the parties' ages
   
5. the duration of the marriage
   
6. the standard of living of the parties prior to the divorce
   
7. the parties' conduct insofar as it may be relevant to the break-down of the marriage
   
8. an order in terms of subsection 3 of the Act
   
9. any other factor which in the court's opinion should be taken into account
   

The court will consider the above factors to determine what would be a 'just' award in the circumstances. Essentially these factors are taken into account to determine firstly whether maintenance is to be payable at all and secondly if so the amount to be paid each month and the period for which this maintenance is to be paid.

The court is granted a very wide discretion in that it may consider any other factor that it deems relevant as long as this discretion is exercised judicially in that it must be exercised according to established rules of law and practice.

Relevant case law

When determining whether maintenance should be paid the following case law is considered:

• In the case of K v K 2006 (6) SA 127 (C) the court held that it would also take into account the fact that the division of roles in families influences the past earning capacities of the parties as well as the parties future earning capacities.

• In the case of P v P 1990 (1) SA 998 (E) the court held that a woman's ability to earn an income does not disentitle a court from ordering her husband to pay her maintenance.

• In the case of B v B 2009 (3) SA 89 (W) the court held that no more than a financial need on the part of the claimant and the ability to pay on the part of the other spouse needs to be established for a court to make a maintenance order. It was further held that in order to make a just determination a court must consider what is right and fair, which involves a moral component.

• In the case of N v N 1984 (2) SA 294 (C) the court held that all the factors in section 7(2) above must be properly weighed up against each other in order to counterbalance the immorality which could follow if the sole criterion for a maintenance claim were the applicant's need or ability to maintain herself and/or himself.

• In the case of VDW v VDW (GNP) (unreported) it was held by the Honourable Judge Southwood that before the commencement of the Act it was said that no maintenance will be awarded to a wife who is able to maintain herself and that a wife cannot expect to enjoy, after divorce, the same standard of living that she had as a married person, however it is clear from the factors outlined in section 7(2) and the wide discretion which is conferred on the trial court that it is not bound to refuse a wife's claim for maintenance simply because she can support herself.

• In the case of R v R 1980 (3) SA 446 (C) it was held that a wife of long standing who has assisted her husband materially in building up his separate estate would be entitled to more in the form of maintenance than a wife who did not for more than a few years share his bed and keep his life.

• In the case of G v G 1987 (1) SA 48 (C) the wife was a devoted mother and "strove to make a happy home for her husband." In these circumstances, it was held that she would be entitled to more in the form of maintenance than a wife in a marriage of a short duration would.

• In the case of K v K 1986 (4) SA 616 (E) it was held that grooms must take their brides as they find them and therefore if they marry a wives who probably cannot obtain or retain employment they are not entitled to expect a court to attribute a notional earning capacity to those wives upon divorce.

• In the case of B v B 1987 (1) SA 967 (A) the wife had spent her whole married life at home and in her husband's office helping him for many hours a day as well as running the house and yet despite her ability to do various useful work of an unskilled nature, was not attributed any notional earning capacity. It was held that "one should find some balance in favour of the assumption that she will not obtain work (although not necessarily giving full effect to such assumption), for justice requires that it should be the appellant who must suffer the hardship of paying an additional amount of maintenance, beyond what may turn out to be strictly necessary, rather than to allow the respondent to suffer the hardship of an inadequate income if in fact she does not find employment."

When determining the amount of maintenance to be paid the following case law is considered:

• In the case of K v K (1986) referred to above it was held that persons who have become divorced will be forced to reduce their standard of living when the available means are not sufficient to maintain both parties to the same standard of living which was previously attainable when the parties were married. Two people living together can live more inexpensively than two people living apart for obvious reasons such as the necessity of two residences.

• In the case of P v P (1990) referred to above it was held that a wife should be able to expect the same standard of living that she had as a married woman. The husband is entitled to the same. It may not however be possible to achieve this goal and essentially this requires balancing up the needs of both parties and thereafter making an equitable distribution of the available income.

• In the case of MB v NB 2010 (3) SA 220 (GSJ) it was held that both parties should continue to live in the manner to which they have become accustomed post the divorce for as long as the resources available can sustain such lifestyles. If the income and/or capital is insufficient to sustain such lifestyles then each party will have to reduce their standard of living accordingly. The issue is not what people would generally regard as reasonable but what the parties have come to depend on subject to affordability.