The fairness of spousal maintenance after divorce

By Magdaleen de Klerk

There is a general misconception that the main, or even the sole criterion, for a claim for spousal maintenance on divorce is the claimant’s need or ability to maintain himself or herself.

The law to be applied is s 7(2) of the Divorce Act 70 of 1979 (the Act).

Section 7(2) of the Act provides that the court granting a decree of divorce may make a maintenance order in favour of one of the spouses after considering the following factors, namely –

• their existing or prospective means;

• their respective earning capacities;

•their financial needs and obligations;

• the parties ages;

• the duration of the marriage;

• the standard of living of the parties prior to the divorce;

• the parties’ conduct insofar as it may be relevant to the break-down of the marriage;

• an order in terms of subs (3); and

• any other factor, which in the court’s opinion should be taken into account.

The purpose of the court’s inquiry in terms of s 7(2) is to determine what award would be ‘just’.

The court is required to consider the factors referred to in s 7(2) in order to decide, firstly whether maintenance is to be paid at all and, if so, the amount to be paid and the period for which maintenance is to be paid.

Section 7(2) gives the court the widest discretion to take into account the factors listed and any other factor that in the opinion of the court should be taken into account.

No particular stress was laid on any one or more of these factors, and they are not listed in any particular order of importance or of greater or lesser relevance.

The feature of overriding importance is that the court will grant such order as it considers to be just.

The discretion given to the court in terms of s 7(2) must be judicially exercised. This means that discretion must be exercised according to established rules of law and practice.

This presupposes that evidence regarding those factors should be placed before the court.

Each case should be considered on its own merits in the light of the facts and circumstances peculiar to it and with regard to those factors set out in s 7(2).

With regard to the question whether maintenance is to be paid:

It was held in K v K 2006 (6) SA 127 (C) that: ‘This Court, however, also takes into account the fact that the division of roles in families influences not only the past earning capacity of the parties, but also their future earning capacities. For a discussion of this view, see the article entitled “Labours of Love: Child custody and the division of matrimonial property at divorce” (Elsje Bonthuys, BA LLB PhD, (2001) 49 THRHR p 192 at 202), of which the following quotation is an extract:

“A legal reluctance to order maintenance for working women who are considered able to support themselves not only entails, therefore, a refusal to compensate them for past diminution in earning power, but fails to account for loss of earning power which inevitably attaches to post-divorce custody”’ (at para 11.2.11).

It was further held that the decision of Mullins J in P v P 1990 (1) SA 998 (E) is supported where it is stated that: ‘A woman’s ability to earn income does not per se, in my view, disentitle the Court from ordering her former husband to pay her maintenance’ (at 1003–G).

It was held in B v B 2009 (3) SA 89 (W) that an approach that no more than financial need on the part of the claimant and ability to pay on the part of the other spouse need be established for the court to make a maintenance order ‘is not consistent with the wording of s 7(2) which requires consideration of a multiplicity of identified factors which are not a numerous clauses. One is required to go further than “financial needs” and “existing means” and “earning capacities”’ (at para 49).

It was held further that: ‘What is thought to be a “just” order in the context of the Divorce Act must contain a moral component of what is thought to be “right” and “fair”. Fairness envisages that the order is “appropriate” as between the parties, and when measured against all the factors specified in s 7(2) and those others which a court decides should also be taken into account. What is “appropriate” brings one back full circle to the moral consideration that the order must be “deserved”’ (at para 46).

It was held in N v N 1984 (2) SA 294 (C) that: ‘A proper weighing of all these factors is important to counter-balance the inherent immorality that could follow were the sole or even the main criterion for a claim for maintenance to be the plaintiff’s need or ability to maintain herself’(at 297–B).

It was held further that: ‘Had the Legislature intended to preserve the common law and limit maintenance in accordance with a wife’s ability to maintain herself … the Divorce Act could encourage immorality in many ways. It could then be the middle-aged libertine’s charter of freedom. A man could throw out the woman who had shared his bed, ran his home, and reared his children, after twenty years or so, replacing her with something younger and prettier, and claim that his wife is not entitled to maintenance because during twenty years of minding his home and family she had also earned money outside that home … and could now that the children were off her hands work that much harder. On the other hand it would be equally unjust that an indigent woman unable to earn much money could marry a wealthy man, walk out of her wifely duties and try to use him as a meal-ticket for life … I can think of no reason why a blameless husband who has sacrificed his own career advancement and along with it income and pension benefits, in favour of his wife’s, should not be entitled to a contribution towards his maintenance from her, merely because he would not starve without’ (at 297–C).

It was held in VDW v VDW (GNP) (unreported case no55831/08, 23-3-2011) (Southwood J) 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 – see Hahlo Husband and Wife 5ed 361 and the cases there cited. However it is clear from the factors enumerated 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.’

It was held in R v R 1980 (3) SA 446 (C) that: ‘A wife of long standing who has assisted her husband materially in building up his separate estate would in my view in justice be entitled to far more by way of maintenance, in terms of this section, than one who did not more for a few years than share his bed and keep his house’ (at 450–G).

In G v G 1987 (1) SA 48 (C) the complainant kept a home about which no complaints could be made. ‘She was a devoted and exemplary mother to her children. She strove to make a happy home for her husband …’. It was held that: ‘In all these circumstances she would be entitled to more by way of maintenance than a wife in a marriage of short duration would be…’ (at 53–A).

It was held in K v K 1986 (4) SA 616 (E) that bride-grooms must take their brides, as they find them and if they marry 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 on divorce.

In 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’.

With regard to the amount of maintenance to be paid it was held in the K v K (1986) case (op cit) that in most cases persons who have become divorced will be compelled by necessity to reduce their standards of living, for where the available means of support are not adequate to maintain both according to their former scale of living, each must of necessity scale down his or her budget. To say that two can live as cheaply as one, is not true. The fact of the matter is that two living together can live more cheaply than two living apart, for obvious reasons such as the need for two residences plus rates, maintenance, service charges and all the rest of it.

In the P v P (1990) matter (op cit) it was held that ‘a wife should, in my view, be able to expect the same standard of living that she had as a married woman. In most cases it may not be possible to achieve this goal, and of course a husband should be entitled to the same expectation, but in the final result it is a question of balancing up the needs of both parties and making an equitable distribution of the available income’ (at 1002–F).

In MB v NB 2010 (3) SA 220 (GSJ) it was held that ‘the proper approach is to postulate that the parties should each continue, following divorce, to live in the style to which they have become accustomed for so long as this was permitted by the resources at their disposal. If, as so often happens, the capital and income are insufficient to meet this standard, then each should abate their requirements accordingly. In this limited sense the touchstone is subjective: The issue is not what people generally would regard as reasonable … but what the parties have come to depend on, subject always to the criterion of affordability’ (at para 33).

Clean break principle

It was held in AV v CV 2011 (6) SA 189 (KZP) that: ‘[O]ur courts will always bear in mind the possibility of using their powers … in such a way as to achieve a complete termination of the financial dependence of the one party on the other, if the circumstances permit. The last-mentioned qualification is of course, very important’ (at para 17).

It was held further that ‘there will no doubt be many cases in which the constraints imposed by the facts … will not allow justice to be done between the parties by effecting a final termination of the financial dependence of the one on the other’ (at para 17).

In VW v VW (SE) (unreported case no 136/2005, 4-4-2006) (Jones J) it was held: ‘There is much to be said in a case such as this for achieving a clean break between the parties. This is normally only possible, in a case of spouses of mature age, where there are assets of sufficient worth to enable both parties to be self-sufficient if the assets are divided. That is not the position here’ (at para 9.4).

It was held in the B v B (2009) matter (op cit) that ‘our courts may have been quick to proclaim the need for former spouses to be financially independent of each other whilst not always fully cognisant of the many experiential barriers and familial responsibilities which render such security no more than a chimera for many women’ (at para 39).

It was stated by M de Jong ‘New trends regarding the maintenance of spouses upon divorce’ (1999) THRHR 75 at 82 that ‘the most important asset of most households is the stream of future income that represents a return on career investment’.

Conclusion

In the end the feature of overriding importance is that the court will grant such order as it considers to be just.

Magdaleen de Klerk BProc BA (UFS) is an attorney at DDKK Attorneys Inc in Polokwane.

This article was first published in De Rebus in 2015 (March) DR 18.