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Divorce and Spousal Maintenance

The main issue in a divorce matter not always relates to the maintenance of the minor children but very often to the maintenance of a spouse. A party in a divorce matter would normally only be entitled to lifelong maintenance if there could be proven that the other party was the sole bread winner throughout the marriage and got him/her used to a certain standard of living which should be maintained after the divorce. One would also look at other factors such as the age of the parties and their respective qualifications, as well as the length of the marriage.

Very often in a divorce settlement one party would be ordered to pay the other party maintenance for one or two years after the divorce and no longer than that, in order to assist the other spouse financially for a couple of years after the divorce.

Gibbs vs Gibbs

South African cricket player, Herschelle Gibbs, is at present going through a divorce after a year of marriage. His wife in court papers recently claimed that her monthly living expenses including the cost of maintaining the house amount to R96 950,00. In a recent High Court matter his wife requested the court to stop him from taking away a credit card and access to his bank accounts. Gibbs was ordered to pay maintenance until at least August, the next court date.

Although Gibbs’ wife claims that he was verbally abusive and abused alcohol, he alleges that he was naïve when he married her.

In this specific case the parties were married for one year only and this will definitely be taken into account in determining any personal (spousal) maintenance for Mrs. Gibbs. It would not seem as though she would be entitled to personal maintenance for a life time.

Botha vs Botha : is spousal maintenance an automatic right?

The abovementioned question was raised recently in the Witwatersrand Local Division, in the case of Botha v Botha (Case No 2005/25726), as recorded in our law reports at 2009(3) SA 89.

In the abovementioned case Mrs Botha in the divorce action claimed maintenance for life in the sum of R30 000 per month. Mr Botha was 50 years old and a qualified engineer. He had a son living in the U.S.A. when he married Mrs. Botha. When they married, both Mrs. Botha and her daughter moved into Mr. Botha's house. Mrs Botha was 39 years old and held a certificate in Industrial Relations from Rand Afrikaans University and was employed at South African Federated Engineering Contractors (SAFEC) , where she earned R7000,00 per month. The parties got married in 1999.

The marriage was out of community of property with the exclusion of the accrual system. Mrs Botha in the divorce action averred that her standard of living had improved after the marriage. She had rented a property prior to the marriage and had moved into a house owned by Mr. Botha after the marriage.

The court in this case looked at what Mrs. Botha's expenses were in order to determine whether she should be entitled to maintenance. Documentation revealed regular and substantial purchases of alcohol. She admitted that she drinks nearly a bottle of wine each night. Cashmere clothing and French-manicure gel nails were included in her expenditure. She testified that she purchases mineral water because she “doesn't drink plain water”. Many magazines were purchased each month, and she regularly went out for meals with two or more people. She justified all these expenses on the grounds that “I lead a very active social life” and “why not?”.

The court in this case found that Mrs. Botha had not established a marital lifestyle in which she is entitled by law to be maintained. Her claim for maintenance for herself was dismissed. The court found further that Mr. Botha bears no legal responsibility for Mrs. Botha's daughter.

In the abovementioned case the independent lives establied by the parties into middle age, the duration of the marriage, the employment of the claimant prior to, during and after the marriage, the claimant's responsibilities for an adult daughter combined with their refusal to seek any assistance from the co-parent of that daughter, the absence of evidence as to the costs of the marital lifestyle established and enjoyed by cohabiting parties and the extravagance of the lifestyle established by the claimant after she and her spouse had seperated were amongst the factors taken into account in assessing the claim for maintenance.

What is particularly interesting about this case, is that the judgement confirms that, taking into account so-called “clean break” and constitutional principles, there is no automatic right to maintenance after a divorce. Entitlement to maintenance must first be shown before a court can determine the quantum and duration thereof.

This article was written by Cape Town divorce law specialist, Peter M Baker

Related articles

Binding of your spouse's estate in the event of death

Maintenance & paternity

Maintenance & polygamy

When your ex remarries

Maintenance for a child over 18

Rule 43

Reduce maintenance


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