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Duty to support wife after divorce

This question comes up time and time again in my cases.  The man is usually of the view that the wife can work post-divorce.  The wife’s argument usually is that the husband got her accustomed to a certain standard of living during the course of the marriage, and now post-divorce there is a duty on him to support her too.

Recent case law dealing with maintenance of the wife post-divorce is that of SH v EH 2011 (5) SA 496 (ECP).  In a divorce action instituted by the wife against her husband, she also sought maintenance for herself post-divorce.  The husband objected to this, based on the fact that she was now living with another man, S.

The husband said that it is against public policy for him to support her whilst she was living with another man.  He said that a woman cannot be supported by two men at the same time, and that now that she was living with S, the duty to maintain her now fell on S.

The court in this case found that there was no legal duty on S to support her, and that if he did so he was doing so out of generosity.  The court found that only if she married S would there be a legal duty on S to support her.

The court found that there was no legislative prohibition against the husband from paying maintenance, and neither was it against public policy that he should pay maintenance.  This case was a very interesting decision.  I have heard of many cases and been involved in many too where the court finds that because of the new relationship there is no longer a duty on the man to support his wife.  That duty now falls on the new partner.

There are just so many variables to be taken into account in determining a man’s duty to support his wife post-divorce.  In the case of SH v EH the man was ordered to pay his wife R2000.00 per month maintenance.  The fact that there is an additional income coming into the household is certainly something which a court takes into account in determining how much maintenance should be paid.

In one case of mine a 46-year old lady who had been a housewife her entire life consulted me.  Her husband had supported her throughout the twenty year marriage and had now left her and the two children to go live with his new girlfriend.

My client wanted advice on the maintenance.  I advised her that there was a duty on him to pay her lifelong maintenance due to the duration of the marriage and the fact that he had got her accustomed to a certain standard of living.  I did advise her further that he would probably insist that if she remarries or cohabitates with another man, that his duty to pay her personal maintenance would fall away, and the courts would probably accept that.

I tell a lot of people that your decision as to who you marry is the biggest decision of your life.  The reality of the matter is that many marriages come to an end.  If you get somebody accustomed to a certain lifestyle the courts usually find that you must continue supporting that person post-divorce at least for a certain period of time, and sometimes even for the rest of their life.

In as much as there is a duty to maintain a wife after the divorce, the same would apply to a woman who has got her husband accustomed to a certain lifestyle during the marriage.  She must then maintain him post-divorce.  Being the breadwinner during the marriage often counts against you in a divorce unfortunately.

This article was written by Cape Town attorney, Peter M Baker

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Maintenance & paternity

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