We are often faced with the situation where there is a disparity between the income of spouses during a divorce, and where the one party is not able to support himself or herself. This is especially the case where the party is not working and has not worked for some time. The question to be addressed in this article is twofold, namely:
a) does a spouse have a right to rehabilitative maintenance and if so,
b) to what extent does a spouse have a right to rehabilitative or spousal maintenance
The common law position:
At common law there is an automatic obligation on each spouse to support each other. This does not usually create any problems, until it comes to an imminent divorce. As one of our courts have aptly put it :
“Marriage as a social institution is not a business enterprise and parties thereto do not generally regard each other with calculated prudence as shrewd business individuals would each other when engaged in business transactions. They do not keep precise records of the favours they extend each other, nor do they, as a matter of course and practice, reduce their daily undertakings to each other in writing. They are guided in their dealings with each other by trust and unquestioning acceptance that they would be together as husband and wife until death do them part. They generally remain gullible towards each other until their love for each other loses its flame and only then do they start to gaze around and tread with suspicion and care as against each other.”
The common law duty of support does not stop simply because the parties no longer love each other, or no longer live together. Whilst the parties are married, the duty exists and when divorce proceedings are started, negotiations often commence regarding support after divorce, i.e. rehabilitative maintenance or spousal maintenance.
Rehabilitative maintenance vs Spousal Maintenance
The concepts are often used synonymously, but there is a practical difference. Rehabilitative maintenance is what the term implies, it is maintenance or support for a period of time, in order to afford the party to obtain employment or to obtain an alternative source of income. This would usually be the situation where the spouse is unemployed at the time of instituting a divorce, but where he or she has not been out of the work place for too long a period and is able to seek and obtain gainful employment.
Spousal maintenance is more of a long term maintenance and is usually sought, and awarded, when the party has typically taken care of the house and children during the marriage. Spousal maintenance can be awarded for life or until the remarriage of the party and takes into account, amongst other things, the duration of the marriage and the contribution that the spouse has made towards the joint household (not necessarily monetary contributions).
The extent of rehabilitative or spousal maintenance
The yardstick for child maintenance after divorce and that of spousal maintenance is different. Whereas a child is expected to be maintained in the same lifestyle that the child had prior to the divorce (where this is possible), a spouse after divorce is not. One of the consequences of divorce is invariably that the parties would need to adjust their lifestyle. The Divorce Act 70 of 1979 regulates the division of assets, maintenance and forfeiture of benefits on divorce. When it comes to spousal or rehabilitative maintenance, it is irrelevant whether the parties are married in or out of community of property as maintenance is not assets as such. Sect. 7(2) of the Divorce Act enumerates, in no particular order of importance, factors that are taken into account when a court orders spousal maintenance. These factors include the existing or prospective means of the parties, their respective earning capacities, financial needs and obligations, the age of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, the conduct of the parties insofar as it is relevant to the breakdown of the marriage, and any other relevant factor that the court may take into account in determining the amount of spousal maintenance to be paid.
In summary, each matter is to taken on its merits. But in principle, spousal and rehabilitative maintenance are an important aspect of divorce and no party should be left destitute simply because a divorce is the best option in the circumstances.