Does the court have the discretionary power to award rehabilitative maintenance?

Does the court have the discretionary power to award rehabilitative maintenance?

Rehabilitative maintenance refers to an amount of money given to a dependent spouse (usually a home maker) following divorce for a relatively short period of time to allow that person to obtain additional education or have time to look for work to make that person financially independent.

Unfortunately, there is no law in South Africa that mandates that spousal maintenance must be ordered when parties divorce, the amount of spousal maintenance and the period for which maintenance should be paid.

Marriage creates a reciprocal duty of support between spouses, which lasts for as long as the marriage subsists. Generally, spousal maintenance is a discretionary remedy and the courts will grant it if satisfied that the person claiming maintenance has established a need to be supported. If no such need is established, it would not be “just” to grant a maintenance order.

In making this order, the court must have regard to the general statutory guidance provided for in Section 7(2) of the Divorce Act. This provision provides a list of factors that the court must consider before making a spousal maintenance order, such as the parties respective earning capacities, age of the parties, duration of the marriage, financial needs and obligations, standard living of the parties prior to the divorce, their conduct in so far as it may be relevant to the breakdown of the marriage, and any other factor which on the opinion of the court should be taken into account.

In short, the court should be convinced that within a defined period of time, the financially weaker spouse will be able to acquire the necessary qualifications, experience and/ or training to be able to participate in any economic activity that would make her self-sufficient.

In conclusion, it is of paramount importance to note that when determining spousal maintenance, each case must be considered on its own merits in the light of the circumstances and the facts similar to it. For more information, kindly contact Duvenage Attorneys and we will gladly assist you.