Maintenance of spoused after the dissolution of marriages

Question 1

According to the common law general rule when is the reciprocal duty of support terminated?

Answer 1

By the dissolution of the marriage.

Question 2

What does Section 2 of the Surviving spouse Act says?

Answer 2

A surviving spouse may claim reasonable maintenance from their deceased spouse’s estate—until they die or remarry—if they cannot meet their own needs from personal income or assets.

Question 3

What principles are applicable?

Answer 3

1. The surviving spouse’s maintenance claim has the same order of preference as that of a dependent child.
2. If the estate cannot cover both claims fully, the claims will be reduced proportionately.

Question 4

Which section determine the reasonable maintenance needs?

Answer 4

Section 3 of the surviving spouse act

Question 5

Which factors should be taken into account in the determination of the reasonable maintenance needs in addition of any factors?

Answer 5

1. The amount in the estate of the deceased spouse available for distribution to heirs and legatees
2. Survivor’s existing and expected means, earning capacity, financial needs and obligations, and the duration of the marriage.
3. Standard of living during the marriage and the survivor’s age at the time of death.

Question 6

Which act administer the claim of the surviving spouse?

Answer 6

In accordance with the Administration of Estates Act,

Question 7

Whom must the claim be lodged with?

Answer 7

The executor of the deceased’s estate.

Question 8

What did the court say in the case of Oshry v Feldman?

Answer 8

The court said that the spouse may be entitled to a lump sum award from the deceased’s estate instead of ongoing payments.

Question 9

What was held in the case of Friedrich v Smit NO?

Answer 9

The court said that “reasonable maintenance” doesn’t mean asking for too much or living a fancy lifestyle. The surviving spouse can’t just demand a lot of money for no good reason.

Also, the surviving spouse has to prove that they can’t support themselves. If they don’t show this, they won’t get any money from the deceased spouse’s estate.

Question 10

What is it meant by Maintenance pendente lite is?

Answer 10

Maintenance pending a court case (divorce action) for a spouse or for a child/minor where applicable.

Question 11

In which terms is the maintenance pendente life awarded? According to which rule?

Answer 11

In terms of Rule 43 of the Uniform Rules of Court.

Question 12

What is the procedure for the maintenance pendente life?

Answer 12

1. An application should be made to the high court or the regional division of the magistrate court, the application should be supported by a sworn affidavit.
2. Certain thing should be included in the affidavit
3. If the court is satisfies that there is prima facie, they grant temporary maintenance.
4. A final order is granted at the divorce action.

Question 13

What should the affidavit include?

Answer 13

1. The reasonable maintenance REQUIREMENTS of the applicant;
2. The ABILITY of respondent to pay;
3. Fact that respondent is OBLIGED to support applicant.

Question 14

Which section was enacted to move away from the situation of the common law when it comes to the reciprocal duty of support?

Answer 14

Section 7 of the divorce act.

Question 15

Why do they have to move away from the common law?

Answer 15

It was unfair, especially in cases where one spouse (usually the wife, historically) may have given up their job or career to raise kids or support the household. After divorce, that spouse might be left without any income or means to support themselves.

Question 16

What does S7(1) regulates?

Answer 16

It permits the parties to enter into a WRITTEN AGREEMENT to regulate maintenance. This agreement is know as the settlement agreement.

Question 17

When does section 7 (2) apply?

Answer 17

When the parties have not entered into an agreement or attempted to do so but could not do so as there was no consensus. The applicant can approach the court hearing the divorce matter for grant a maintenance order in which the court finds fair and just.

Question 18

What happens if there is an agreement? 7(1)

Answer 18

1. The agreement should be written and it can be a court order.
2. The court enjoys the discretion
3. The parties can agree on when the maintenance can be terminated or continue.
4. Provision can be made for INCREASING the maintenance if necessary.
5. Maintenance can be adjusted based on inflation or end automatically if a specific condition
   6, Since its a contract, changes must be agreed to by both paries.

Question 19

When can the maintenance continue?

Answer 19

the remarriage of the indebted spouse, or
> the DEATH of the paying spouse, or
> COHABITATION (with a third party).

Question 20

What are the two reasons parties ask the court to make the agreement a court order?

Answer 20

1)Liability for BREACH OF CONTRACT, and
2) CONTEMPT OF COURT – criminal offence

Question 21

What’s a judgement debt?

Answer 21

The amount that the court has ordered someone to pay to another person.

Question 22

What happens to the maintenance payments if the agreement is made a court order?

Answer 22

The payment will be treated as a judgement debt.

Question 23

When does the debt prescribe if it id turned into a judgement debt?

Answer 23

Unlike a normal debt that takes 3 years? It will take 30 years to prescribe

Question 24

Which act set out how long debts take before they prescribe?

Answer 24

Prescription Act 68 of 1969,

Question 25

In which section is the judgment debt constituted?

Answer 25

Section 11 A

Question 26

In which case was the judgement debt confirmed?

Answer 26

Accus v Arcus

Question 27

How can the variation of maintenance take place?

Answer 27

In terms of S8(1) of the divorce at or the maintenance Act. With sufficient reasons.

Question 28

Variation will not be made unless what?

Answer 28

Unless there is material change in the circumstances of the person obliged to pay.

Question 29

When can maintenance be terminated?

Answer 29

1. When the agreement stipulates. 2. At the death of the spouse entitled to maintenance (even if the agreement stipulates differently) 3. dum casta clause (unchaste life) 4. The death of the liable party (if stipulated in the agreement) otherwise the court favors continuation 5. The insolvency of the other spouse does not terminate the maintenance duty. (Weinburg v Weinburg)

Question 30

What if there's no agreement? 7(2)

Answer 30

1. The court have the discretion to make an order for maintenance on the application of a spouse 2. The factors listed in 7(2) shall be considered in order for the court to make an order that is just

Question 31

What was confirmed in the case of AC v CV?

Answer 31

Spousal maintenance is not automatic. The person asking for it/divorcing must convince the court with real facts. Only then will the court decide whether, how much, and for how long maintenance should be paid.

Question 32

Which factors must be taken into consideration by the court in terms of 7(2)?

Answer 32

 the existing or prospective means of each of the parties,  their respective earning capacities,  their financial needs and obligations,  the age of each of the parties,  the duration of the marriage,  the standard of living of the parties prior to the divorce,  their conduct in so far as it may be relevant to the break-down of the marriage,  an order relating to redistribution of assets, and  any other factor which in the opinion of the court should be taken into account.

Question 33

What does the Grasso v Grasso case say about the application of these factors?

Answer 33

That all the factors are important and they should be taken into account, the order is not really necessary. confirmed in Buttner v Buttner.

Question 34

The factors in 7(2) are taken into consideration to decide what?

Answer 34

1. Firstly, whether a need for maintenance exists, if so, by whom and to whom the maintenance is payable. 2. Secondly, The amount of such maintenance 3. Thirdly, The period for which is to be paid.

Question 35

What are the principles applicable?

Answer 35

1. All must be taken into consideration 2. No distinction between wife and man 3. No distinction between plaintiff and defendant 4. Misconduct may be taken into consideration but not as an overriding factor 3. Cohabiting after divorce does not automatically disqualify a spouse from receiving maintenance; entitlement still depends on financial need and the factors in section 7(2) of the Divorce Act. 4.The court is not required to establish FINANCIAL EQUALITY between the spouses

Question 36

Can the maintenance order be made later?

Answer 36

No it should be coupled with the divorce.

Question 37

When does maintenance ends in terms of S7(2)?

Answer 37

Remarry or death of the indebted spouse

Question 38

What's a token maintenance?

Answer 38

very small amount of money paid to one spouse from the other

Question 39

When can a token maintenance be ordered?

Answer 39

When there is no need to make maintenance order at the time of the divorce and when it is seen that the recipient will need the maintenance in the long term or that the other spouse will only be able to meet the existing needs of the spouse in the future, It can be varied.

Question 40

What happens if the application shows that the maintenance is not needed in terms of factors included in 7(2)

Answer 40

Such an order will not be given

Question 41

What's rehabilitative maintenance?

Answer 41

temporary financial support to help a spouse become independent after divorce.

Question 42

What is it meant by maintenance as a meal life ticket?

Answer 42

Maintenance is no longer seen as something that should last forever.

Question 43

What does the life meal ticket theory aligns with?

Answer 43

It aligns with the clean break principle that says that both spouses should eventually become financially independent.

Question 44

Who can be granted rehabilitative maintenance?

Answer 44

Employable people

Question 45

For how long should the rehabilitative maintenance be given?

Answer 45

For only a limited of prime in which the spouse who is receiving maintenance should take up employment or increase their current participation in employment. Foe example, undergo re training or therapy. The purpose hereof is for the spouse to be placed in a position to be able to maintain himself or herself.

Question 46

Which factors are included with regard to the employability of the spouse?

Answer 46

Age, health, qualification, and length of absence from the labor market (Pommerel Pommerel). Thus there is no harsh/fast rule, each case must be judged in its own merit.

Question 47

At which time can a maintenance order be amended, suspended or rescinded?

Answer 47

At any time. Only a maintenance order. This in terms of S8

Question 48

Does the maintenance court have the power to maintenance order in terms of S7?

Answer 48

No

Question 49

What does section 8 require for the order to be varied?

Answer 49

1. Sufficient reason 2. There must be relevant change to the circumstances such as : Financial situations that worsens due to increase in needs and obligations. (The obligations must not generally be a voluntary undertaking of extra commitments) 3. Cannot be varied simply because the other spouse is dissatisfied with the other spouse.

Question 50

What happens if the maintenance order is substituted?

Answer 50

1. An existing maintenance order only ceases to be of effect from the moment it is substituted 2. The substituting order operates prospectively unless, and only to the extent, that the latter order expressly has retrospective effect.

Question 51

Which case clarified whether maintenance can be bounded to the deceased's estate?

Answer 51

Kruger NO v Appeal and it was confirmed that it cannot in terms of Natal High Court in Hodges v Coubrough