This is a comprehensive and detailed note on Chapter 10; maintenance, forfeiture of benefits and redistribution orders at divorce for Rdl 1008h.
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Maintenance, Forfeiture of Benefits
& Redistribution Orders at Divorce
MAINTENANCE
s7 and s8 of the Divorce Act 70 of 1979
When people marry a legal duty of support arises and that duty remains until divorce, unless
there is a maintenance order which is in essence a duty of support after death. This can occur in
various ways
The courts must decide whether it is fair to let the duty of support continue
The “Clean Break” principle can be followed or the duty of support can be extended.
Maintenance for children does not stop unless they are self-supporting)
SPOUSAL MAINTENANCE
Section 7 of the Divorce Act allows for two kinds of maintenance orders:
S7(1): by written agreement/based on a settlement between the two parties which can be made
an order of the court
S7(2): based on a decision by the court (discretion of the court) if the spouses have not entered
into a written agreement or if the court deems that written agreement to be inequitable.
7. Division of assets and maintenance of parties- (1) A court granting a decree of divorce may in accordance with a
written agreement between the parties make an order with regard to the division of the assets of the parties or the
payment of maintenance by the one party to the other
(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one
party to the other, the court may, having regard to the existing or prospective means of each of the parties, their
respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of he
marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be related to the
breakdown of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court
should be taken into account, make an order which the court finds just in respect of the payment by the one party to the
other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may
first occur.
S7(1)
If the parties can agree in writing, the court can make that agreement the divorce order.
This is not always the case. The court ultimately determines if the agreement is necessary and
how much the maintenance order should be.
S7(2)
If there is no agreement the court will decide if it is just for one spouse to pay maintenance.
Based on a decision by the court (discretion of the court) if the spouses have not entered into a
written agreement or if the court deems that written agreement to be inequitable
Typically maintenance lasts until a spouse remarries or dies.
Factors to take into account when deciding on amounts for Maintenance
1) Existing and Prospective means of each party
2) Earning capacities
This is often a problem with wives who were housewives)
3) Financial needs and obligations these are bourgeoisie factors such as cars, rent, extra houses)
4) Age of the parties
If they are still young they can still earn their own money
5) Duration of the marriage
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, The longer it is, taken into account with the other factors such as the wife being a housewife,
the more maintenance is likely to be awarded.
6) Standard of living prior to the divorce – spouses should not have to downgrade
7) Conduct relevant to the breakdown of the marriage
Prior to 1979 a divorce was usually the “fault” of one of the parties. Now divorce is based on
irretrievable breakdown of the marriage but conduct is still taken into account. It affects the
amount of maintenance awarded.
8) Any redistribution or forfeiture order that has been made
9) Any other factor
Maintenance principles
Either party may be ordered to pay maintenance
The order must be coupled with a divorce decree because maintenance orders cannot be granted
after divorce
Maintenance to children is compulsory but the spouse is not as lucky; There is a strong argument
that the spouse doing child-care should be compensated.
In 1979 certain divorce issues were more clear-cut because it was mostly one type of marriage
that existed with no other family forms, very stereotypical.
The relationship of care and dependence between spouses is not fixed anymore
The “clean break” principle is applied to those marriages that were not very long and where no
children are involved.
Courts have also been playing with the way maintenance orders have been given and there are
three types of maintenance:
1) Rehabilitative maintenance
Grace period in which maintenance is paid, until the spouse gets back on his or her feet.
When it is clear that one party needs maintenance at divorce but is still able to support
themselves by getting a job and earning their own money (young enough), they received
maintenance for a short time only
2) Lump sum maintenance
The Divorce Act does not provide for this explicitly as s7(2) as it only empowers a court to make
a maintenance order for “any period”, however that period can be restricted to a day or a month
in which time one large sum could be paid.
It follows the clean break principle whereby a large amount is given
3) Token maintenance
A maintenance order cannot be made after a divorce has been finalized, so token maintenance is
a small monthly amount such as R1 or R5 in favour of the spouse who may require maintenance
later. This way, if that need arises the maintenance order can be varied in terms of s8(1) of the
Divorce Act.
This is awarded where there is the possibility of needing maintenance later.
DURATION OF ORDERS
Ordinarily the order lasts until a maintenance receiver dies or remarries [ s7(2)].
The notion of it stopping upon remarriage is a 1979 ideal that the husband always provides for his
wife because in the past women were financially dependent on their husbands.
There is no similar provision for a s7(1) marriage. S7(1) tends to be unfair because the court does
not know if there was bullying of one spouse into the contract as much manipulation occurs and
it needs to be accounted for.
NOTE: dependent spouse is usually vulnerable, particularly in the case of women
CASE: Odgers v de Gersigny (2006)
Facts: The appellant and the respondent had been married for 7 years and had a s7(1)
agreement, but prior to their divorce in 1998 they concluded a written deed of settlement to be
part of their decree of divorce. This was not made an order of the court, but one clause of this
settlement provided that the appellant would pay maintenance monthly, and it did not mention
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