Back in the day it was a given, that a wife was entitled after divorce to be “kept in the manner to which she had been accustomed.” No more. The harsh reality of life after divorce is this: each must, in all but exceptional circumstances, fend for themselves. The ‘clean break’ principle, rules.
The Divorce Act provides, in Section 7(2), that a court may grant an order that it “deems just” (i.e. a court has a broad discretion) and that it should take account of a wide variety of factors, namely –
(a) the existing or prospective means of both parties;
(b) the respective earning capacities of the parties;
(c) the financial needs and obligations of the parties;
(d) the age of each of the parties;
(e) the duration of the marriage;
(f) the standard of living of the parties prior to divorce;
(g) the conduct of the parties insofar as it may be relevant to the breakdown of the marriage;
(h) any redistribution order made in terms of section 7 (3) of the Divorce Act; and
(i) any other factor which in the opinion of the court should be taken into account.
Almost any needy person will be able to grab hold of a selection of the above factors and argue for maintenance, but for this: the bare bones of the statute law (i.e. made by Parliament) are brought to life and kept up to date with societal opinion, through the decisions of the judges of the High Courts. Meaning? Slowly but surely, the courts have been giving decisions that exclude ongoing maintenance, granting only ‘rehabilitative maintenance’ – that is, temporary maintenance to enable the recipient to re-enter the labour market and care for herself. In many cases, including the now famous ‘Venter’ case, no maintenance is granted at all, even where a marriage has been of fairly lengthy duration and the wife (or husband) is not capable of earning much.
When the appeal in the Venter case was decided by the ‘full bench’ of the KwaZulu-Natal High Court, the talk in the media and elsewhere, was that “the perpetual meal ticket is no more”. And so it stands: ongoing maintenance is no longer a right. Indeed, it is very difficult to get, save in exceptional circumstances. It might be granted where after a long marriage, an aged and unemployable wife does not have resources of her own, but the husband has the means with which to pay. It is not enough that she will undergo a drop in her standard of living – that is inevitable after divorce – her case must satisfy the stringent conditions now applied to applicants for maintenance. Very few will succeed.
Roger Knowles Attorney
4 July 2018
Family Law Specialist lawyers and mediators; Divorce; Parents & Children; Grandparents; Cohabitation; Curators; Maintenance; International Divorce; Domestic Violence and more.