I recently received the following query from a law student: "Does marital guilt play a role in a woman losing her right to claim maintenance from her husband? For example, would it be sufficient for them to agree to live apart or should she have committed adultery and moved out of the matrimonial home in order to lose her right to maintenance from her husband?".
The way the law works with her personal maintenance is that if you have maintained somebody who doesn't earn as much as you, and got them accustomed to a certain standard of living, there is a legal duty on you post-divorce to continue maintaining them. That period of time that you must maintain them post-divorce would depend on how long you maintained that person during the course of the marriage. The longer you maintained them, the longer you would have to continue maintaining that person post-divorce.
"Marital guilt" would play more of a role in the division of assets post-divorce usually than it would in determining maintenance. No matter what your conduct was like (whether you had an affair or not for example), if you have a right to maintenance you still have a right, irrespective of what you may or may not have done wrong. Marital guilt and gross misconduct often gets taken into account in determining if a spouse should forfeit the right to share in the equity of an asset post-divorce.
If two spouses agree to live apart, the one spouse would still have the right to claim maintenance from the other post-divorce. All that needs to be proven is that while they were living apart the other spouse maintained them, and got them used to a certain lifestyle. You would also need to prove that your finances are far less than those of your spouse, and that you are reliant financially on your spouse.
If you are not working and you ask for maintenance, proof may be requested as to why you are not working. To succeed in your maintenance claim you would then need to show for example that you have at least applied for employment but haven't been accepted.
Does committing "adultery" or moving out of the matrimonial home affect a spouse's right to claim maintenance? No. Specifically not if you can show that the "adultery" only started after the marriage had broken down irretrievably, which is often the case.
I am glad that universities are posing these maintenance questions to students. These are questions which come up often in practice and are important in our divorce law.
This article was written by Cape Town divorce lawyer, Peter M Baker
Divorce and spousal maintenance