The court’s discretionary power to award rehabilitative maintenance

August 1st, 2020

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In South Africa (SA), there is no law that mandates that spousal maintenance must be ordered when parties divorce. It should also be noted that neither spouse has a right to spousal maintenance on divorce (see Strauss v Strauss 1974 (3) SA 79 (A)). Equally so, there is no law that provides guidance on the amount of maintenance that needs to be paid and the period for which such maintenance should be paid. At best, maintenance orders are subject to judicial discretionary power. It was correctly held in M v M (WCC) (unreported case no A112/10, 25-2-2011) (Steyn J) at para 5 that ‘[t]here is no statutory right to maintenance by reason of the marriage and no act proclaims that maintenance in any amount for any period will be ordered by reason solely of the marriage and the inability of one party to maintain the standard of living to which he or she has become accustomed’. This article examines the law regarding spousal maintenance in SA. In particular, it evaluates the circumstances under which the court can order spousal maintenance for only a defined period.

Marriage creates a reciprocal duty of support between spouses, which lasts for as long as the marriage subsists (HR Hahlo The South African Law of Husband and Wife 4ed (Cape Town: Juta 1975) at 114). In M v M (FB) (unreported case no 4906/2016, 30-7-2018) (Nulliah AJ) at para 59, the court held that ‘[i]t is also well established that the reciprocal duty of support, an invariable consequence of marriage terminates when the marriage comes to an [end]’. As it will be shown later, statutory law does make provision for the extension of this duty post the divorce. The extension of support is often necessitated by the financial circumstances of the spouse who was unable to acquire the necessary financial resources to sustain their life post-divorce. Such a spouse, usually a woman, directly or indirectly assisted the spouse from whom maintenance is sought, usually a man, to acquire financial resources during the marriage.

There is a concerning historical, and to some extent current gender aspect to marriage, wherein generally a husband provides financial support to the wife, who is expected to deliver domestic services (Twila L Perry ‘The “Essentials of Marriage”: Reconsidering the Duty of Support and Services’ (2003) 15(1) Yale Journal of Law & Feminism 1 at 10). This arrangement has the effect of financially disempowering women, who due to domestic services rendered in the household and caring for children could not acquire financial resources that could assist them to adequately support themselves post their divorce. According to Bonthuys ‘[t]he gendered division of labour means that men benefit from the tasks which wives perform. Their earning power increases because they do not have to set aside time or energy for all the tasks which are needed to replenish their labour power’ (‘Labours of Love: Child Custody and the Division of Matrimonial Property at Divorce’ (2001) 64 THRHR 192 at 195). While there have been some improvements in women’s economic position in SA because of their participation in the workplace and trade, nonetheless, recent cases demonstrate that generally women remain financially weaker spouses in marriages (see ST v CT 2018 (5) SA 479 (SCA) and A v A (ECP) (unreported case no 707/2018, 18-6-2019) (Lowe J)). It cannot be disputed that women who, due to their commitment to their marriage, were not able to acquire financial resources should be able not only to share in the assets acquired by the other spouse during the marriage but should also be financially supported if the need for such maintenance has been established.

Financial support seems to be a fair initiative to provide financially weaker spouses financial security post-divorce, particularly if they were prevented from actively participating in trade or acquiring skills to participate meaningfully in the labour market in order to acquire their own financial resources to sustain themselves. Usually, the employment prospects of such spouses, due to lack of academic qualifications and work experience, are bleak, making it difficult for them to sustain themselves financially post-divorce. Sinclair argues that ‘[m]aintenance is and will, therefore, remain the key to the financial security of the women of these marriages who … experience … difficulties, prejudices and inequalities in employment opportunities after divorce’ (‘Marriage: Is it Still a Commitment for Life Entailing a Lifelong Duty of Support’ (1983) Acta Juridica 75 at 85).

This raises a complex question on whether, a financially weaker spouse ‘who was an errant spouse’ and did not acquire financial resources to survive post-divorce, can compel the financially stronger spouse to support ‘her’ (J Sinclair ‘The Divorce Act and the Duty of Support’ (1981) 98 SALJ 89 at 95). If so, for how long? In other words, what are the circumstances that would lead the court to order either ongoing maintenance or rehabilitative maintenance? In 1999, Madelene De Jong correctly observed that ‘reported case law clearly advocates two different approaches to the maintenance of spouses upon divorce’ (‘New trends regarding the maintenance of spouses upon divorce’ (1999) 62 THRHR 75). With reference to decided cases at the time, she illustrated that some cases advocated for a clean-break principle by ordering rehabilitative maintenance, while others were of the view that it is unreasonable to offer a woman who has not worked during the marriage only rehabilitative maintenance, thus advocating for ongoing or permanent spousal maintenance (see also Beaumont v Beaumont 1987 (1) SA 967 (A) at 992 – 993 and Grasso v Grasso 1987 (1) SA 48 (C) at 58).

Given the educational and economic advancement of women, in recent times, South African courts seem to be embracing the clean-break principle by ordering rehabilitative maintenance. Rehabilitative maintenance ‘refers to an amount of money given to a dependent spouse (usually a homemaker) following divorce for a relatively short period of time to allow that person to obtain additional education or have time to look for work to make the person financially independent’ (Mary Frances Lyle and Jeffrey L Levy ‘From Riches to Rags: Does Rehabilitative Alimony Need to Be Rehabilitated?’ (2004) 38(1) Family Law Quarterly 3). Generally, spousal maintenance is a discretionary remedy and courts are empowered by s 7(2) of the Divorce Act 70 of 1979 to grant it and the court, usually through the exercise of its discretion, award rehabilitative maintenance. The SCA in EH v SH 2012 (4) SA 164 (SCA) at para 13, held that ‘the person claiming maintenance must establish a need to be supported. If no such need is established, it would not be “just” as required by this section for a maintenance order to be issued’.

In order to determine whether the spouse who is claiming spousal maintenance has established the need for such maintenance and that it is just for such maintenance to be ordered, the court must have regard to s 7(2) of the Divorce Act. This is the legislative provision that provides the court with the discretionary power to award spousal maintenance when one of the parties to the divorce has not only claimed maintenance, but also made out a case for such maintenance. In Botha v Botha (GJ) (unreported case no 2005/25726, 9-6-2020) (Satchwell J), the court held at para 42 that ‘[i]n exercising its wide discretion, a divorce court may or may not make an order granting maintenance. Where maintenance is granted this may be for “any period” whether a specified period of time or until the happening of an event’.

This indicates that rehabilitative maintenance is not a statutory remedy, but one that can only be granted by the court when a case has been made for it. However, in making this order and absent the parties’ agreement to this effect, the court must have regard to the general statutory guidance provided for in s 7(2) of the Divorce Act. This provision provides a list of factors that the court must consider before making a spousal maintenance order such as the ‘existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the break-down of the marriage … and any other factor which in the opinion of the court should be taken into account’.

These factors are not listed in any particular order of importance or of greater or lesser relevance and none of them is more important than the other (see Grasso (op cit) at 52). The factors should be considered together in order to enable the court to order a fair and just order. It appears that out of all these factors, only three are instrumental in inducing the court to order rehabilitative maintenance. While the court will generally consider the circumstances of the marriage and the reasons that led to the spouse who is claiming maintenance to become a financially weaker spouse, nonetheless, in considering rehabilitative maintenance, the court will surely place emphasis on each spouse’s existing or prospective means, their respective earning capacities, financial needs and obligations, and the age of the spouse who is claiming spousal maintenance. If such a spouse does not have means to support themselves, the court will assess whether ‘she’ has the ability to do so in future, by looking at ‘her’ skills and qualifications. The court should assess the likelihood of such a spouse being able to meet ‘her’ financial needs and obligations without the required financial assistance and the realistic time ‘she’ may need to be able to meet such obligations without such assistance. Age is an important aspect of the analysis. Generally, a much younger person is more likely to find employment than an older person without work experience and or qualifications. The court should also look at whether such a spouse, if afforded the opportunity, will be able to acquire the necessary skills or qualification to be able to either participate in the labour market or enter into business so as to be self-sufficient (Kooverjee v Kooverjee 2006 (6) SA 127 (C) at 137).

In conclusion, it is evident that rehabilitative maintenance should only be ordered if there is evidence that the financially weaker spouse requires the assistance of the financially stronger spouse to be self-sufficient in a short period of time. The court should be convinced that within a defined period of time, the financially weaker spouse will be able to acquire the necessary skills, experience, training and/or qualifications to be able to participate in any economic activity that would make ‘her’ self-sufficient.

Finally, it is worth noting that when determining a spousal maintenance claim, the court must consider the need for such maintenance by the financially weaker spouse and the ability of the financially stronger spouse to pay such maintenance (V v V (GP) (unreported case no 52799/2016, 30-8-2017) (Kubushi J) at para 11). Each case must be considered on its own merits in the light of the facts and circumstances peculiar to it (see Grasso (op cit) at 52).

Clement Marumoagae LLB LLM (Wits) LLM (NWU) Dip Insolvency Practice (UP) is a legal consultant at Rambevha & Morobane Attorneys and a senior lecturer at the University of Witwatersrand in Johannesburg. Mr Marumoagae is also a council member of the Legal Practice Council.

This article was first published in De Rebus in 2020 (Aug) DR 17.