WHEN IS A PARTY TO DIVORCE PROCEEDINGS ENTITLED TO MAINTENANCE?

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Divorce proceedings can be an emotional roller coaster for anyone involved. Often the question arises whether a spouse is entitled to maintenance. The answer is not that simple. There are primarily two classifications of maintenance orders, each with their distinct requirements namely, child maintenance and spousal maintenance.

DIFFERENCE BETWEEN CHILD MAINTENANCE AND SPOUSAL MAINTENANCE

The difference between the two might seem obvious, but often becomes confused when one considers that in both cases maintenance is paid by one party and received by the other. It is the reason and purpose that defines each.

CHILD MAINTENANCE

Child maintenance is the duty of parents to maintain their child or children. Both parents have a duty to maintain their children according to their respective means (income). This duty exists regardless of whether the children are born during the marriage of the parties or out of wedlock. This is most commonly observed when child maintenance is paid to the spouse who is awarded primary care of the children.

In considering what amount should be paid for child maintenance, the Court will consider, amongst others, the parties’ existing and prospective means (income), each parties’ financial needs and obligations and the children’s financial needs and obligations.

SPOUSAL MAINTENANCE

Spousal maintenance is the duty to maintain the other spouse. This duty is created by sections 7(1) and 7(2) of the Divorce Act, 70 of 1979 either by agreement or, in the absence thereof, by the Order of Court. In the event that the parties agree to spousal maintenance, the issue is fairly uncomplicated.

In the absence of an agreement to spousal maintenance, the Court will consider amongst others each parties’ existing and prospective means (income), each parties’ financial needs and obligations, the parties’ standard of living, the age of the parties, the duration of the marriage and the reason for the breakdown of the marriage. These factors are not exhaustive and many others could be of importance for a Court to consider.

CONCLUSION

This article is only intended on giving you a broad outline of the various factors a Court will consider in awarding maintenance. Each case is unique and has its own factors which must be evaluated and considered. Contact us should you have any doubt and want to properly consider your legal remedies.

PIERRE VENTER

+27 742 333 790

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