A consequence of marriage is that the reciprocal duty of support arises between husband and wife. This support is also referred to as maintenance and comprises of food, clothing, shelter and medical care. The reciprocal duty comes to an end when the marriage terminates. It can however be extended by agreement between the parties or by Court Order as a result of a maintenance claim, even after the death of the party providing maintenance. If maintenance is not agreed to, or Court ordered at the time of divorce, it cannot be claimed for at a later date.
The Court may make a maintenance order, which it deems just for any period including up until the death or re-marriage of the party in whose favour the order is given, whichever occurs first. Rehabilitative maintenance is awarded to a divorcing woman, for a limited period, while she trains or re-trains for a job or profession. It is unlikely that maintenance will be awarded to an ex-wife who can support herself.
In making an order the Court will primarily weigh the need of the person to be supported against the resources of the person who is called upon to provide the maintenance. These resources may include the person’s Pension Fund benefits.
Additional factors that the Court may take into account are:
- The existing or prospective means and earning capacities of the parties.
- The financial needs and obligations of the parties.
- Their age.
- The duration of the marriage.
- The standard of living prior to the divorce.
- Conduct, insofar as it may be relevant to the breakdown of the marriage
- An order for the division of the assets.
- Any other factors which the Court deems relevant.
Maintenance will not be ordered by reason solely of the fact that the parties were married to each other, and that one party is now unable to maintain the standard of living to which he/she has become accustomed to during the marriage.