Spousal maintenance decided case by case
Court has discretion to decide how much and who will pay in divorce
Hollywood is renowned for its quick marriages and divorces.
While celebrities splitting up is hardly anything to bat our eyelids over anymore, we often get shocked by their divorce terms and conditions – and the price tag usually attached to them.
Recently, Mary J Blige found herself splashed across the tabloids when a judge ordered her to pay her ex-husband Kendu Isaacs a hefty $30 000 (nearly R362 000) a month for spousal support, or alimony, as it is commonly known.
Blige is not the first Hollywood celebrity to be ordered to pay alimony. While we have heard the term being flung around after a divorce overseas,
many wonder if these kinds of amounts can also apply in South Africa.
Attorney and director at Mthobeni Attorneys, Obakeng Mthobeni, says that it does. How does alimony work?
Why do you need to pay someone who broke your heart and, most importantly, how is the amount determined?
“South African law makes provision for what is called spousal maintenance,” Mthobeni says.
“We are thus guided by what is known as the Divorce Act 70 of 1979.
The act gives the courts powers to grant orders of spousal maintenance in the following instances:
Where the parties enter into
● a settlement agreement during divorce proceedings regarding who would pay spousal maintenance and for how much and also for how long, the court may grant such an order; and
Where there is no such ● agreement, the court may grant such an order at its own discretion depending on the facts presented before it.
“What I want to put emphasis on is that the act makes use of the word “may” in the two scenarios. When it comes to law, every word is used with a particular intention, therefore when they used the word ‘may’ when referring to the powers of the court in spousal maintenance matters, it shows that spousal maintenance is not a right but a discretion of the court once it has looked at the facts and determined whether a party is eligible to receive maintenance after divorce being granted,” he says.
Mthobeni says that being disgruntled over cheating does not exempt one from paying spousal maintenance, as many people would assume.
“A party who requests the other party to pay spousal maintenance needs to bear in mind that spousal maintenance is no longer awarded as a form of punishment for the misconduct of a spouse, eg. cheating or leaving the marital home.
“In the divorce action, it must be shown that the party who requests spousal maintenance will suffer financially if such an order is not granted.”
So, a spouse can ask for spousal maintenance in their divorce papers and furnish all supporting information and documentation in order to convince the court that they really need that financial support,” he says.
So, what are the factors taken into consideration by the courts to determine if you qualify to receive alimony? Mthobeni says that the court relies on a number of factors but the list is not cast in stone, therefore all cases are determined based on their unique facts and circumstances, such as:
Current or future means or
● financial capabilities of the parties;
Their earning capacities;
●
Financial needs and obligations;
●
Their ages;
●
The duration of their marriage;
●
Standard of living or
● lifestyles before the divorce;
Their conduct in so far as it
● may be relevant to the breakdown of the marriage; and
Any other factor.
●
One of the factors that outraged a lot people about the alimony amount Mary J Blige was ordered to pay to her ex was the fact that the couple did not have any kids. Mthobeni says when it comes to alimony, kids are not necessarily a determining factor.
“Even if there were no children, the court could still grant the order.”
When it comes to spousal maintenance, it is all about the lifestyle you accustomed your spouse to.
The duration of spousal maintenance is also determined by the courts, Mthobeni says. “The court will again use its discretion when it comes to the period of the financial support.”
‘ ‘ Spousal maintenance is no longer awarded as punishment