Divorce is not just an emotional journey; it is a financial one as well, of which one of the most important aspects thereof is spousal maintenance, and it is imperative to understand whether you can claim spousal maintenance or whether you are liable to pay spousal maintenance in terms of Section 7(2) of the Divorce Act, 70 of 1979. 

Section 7(2) of the Divorce Act, provides the courts with a discretion to decide as to whether a spouse is entitled to spousal maintenance; however, this right is not absolute. If you are asking for it, you are required to prove entitlement thereto and understanding the requirements and guidelines will be important in protecting your financial future.  

The Legal Framework 

Spousal maintenance can arise in two ways. First, through a written settlement agreement, often called a “consent paper,” concluded under Section 7(1) of the Act. Alternatively, in the absence of such an agreement, the court has discretion under Section 7(2) to make a “just” order regarding maintenance. 

In exercising this discretion, the court considers a range of factors, including the need for maintenance, the means and earning capacity of the parties, their financial obligations, age, duration of the marriage, standard of living, conduct relevant to the breakdown of the marriage, and any other factor deemed relevant. 

Key Factors Considered 

Means of the parties 
“Means” includes all financial resources—salary, investments, capital assets, and rental income. Determining prospective means can be complex, as it often depends on the division of assets and liabilities. 

Earning capacities 
Courts follow the “clean break” principle, encouraging spouses to become economically independent as soon as possible. A spouse who is young, educated, healthy, and employable is unlikely to receive maintenance. Conversely, a spouse who devoted their life to the household, has limited work experience, or is nearing retirement, is more likely to be awarded support. 

Financial needs and obligations  
Courts distinguish between genuine needs and luxuries. Needs are assessed in light of the marital lifestyle. A spouse’s claim will reflect reasonable day-to-day living expenses consistent with the standard of living during the marriage. 

Age and duration of marriage  
Short marriages often make it easier to sever financial ties, especially where both spouses are employable. Longer marriages, particularly where one spouse was a homemaker, make financial independence more difficult. Age and employability are crucial considerations. 

Standard of living 
Courts strive to ensure that divorce does not unfairly diminish either spouse’s standard of living. Where resources allow, spouses and children should ideally continue living as they did during the marriage. 

Conduct of the parties 
Although fault is no longer central to divorce law, misconduct linked to the breakdown of the marriage may still be considered.  

Conclusion 

Spousal maintenance under Section 7(2) is not a guaranteed right but depends on compelling circumstances. The court applies a holistic approach, balancing the interests of both spouses to ensure fairness and justice. Ultimately, each case turns on its own facts, with the goal of reaching a fair and pragmatic outcome.  

Written by Sadiqeen Parker, Attorney, SchoemanLaw Inc