The battle for spousal maintenance – from a practical view
Maintenance, or “alimony” as it is called in other jurisdictions, is that monetary relief paid by one party to another in respect of one’s personal living expenses or that of a child.
There are effectively three sources of such maintenance obligations: (1) the reciprocal duty of support between spouses, (2) a successful Court Order in respect of post divorce maintenance and (3) that maintenance obligation incurred by operation of law. I shall address each one separately below:
- During a marriage each spouse owes to the other a reciprocal duty of support, provided that the person claiming such support is actually in need of it and that the other spouse can actually provide same. This support includes clothing, food, medical services and other necessities and is balanced by the couple’s social status, their means of income and the cost of living. This reciprocal duty terminates upon the dissolution of the marriage by death or divorce. Effectively, what this means is that, say, if the main bread winner stops supporting the other party (often the home maker), the home maker can approach a Maintenance Court (as detailed below) and launch the appropriate application to compel the breadwinner to comply with his/her duty of support.
- Upon dissolution of the marriage by divorce, the Divorce Court (being either a Regional Magistrate’s Court or High Court) may make an award of maintenance in terms of the Divorce Act which can have the effect of being “rehabilitative” in nature (being for a defined time) or “life long”. Without going into depth on the factors the Court will use in determining the award, suffice to state that such maintenance orders made by these Courts are binding. That said, Maintenance Courts are empowered to vary such order on application in terms of the Maintenance Act. Therefore, where a party who is receiving maintenance in terms of, say, a divorce order in the High Court and such maintenance is too low, that party can approach the Maintenance Court for an order increasing the maintenance payable. Likewise one who is obliged to pay maintenance to an ex-spouse can approach the Maintenance Court for an order decreasing or discharging the maintenance order if he/she cannot afford same.
- One of the most common ways that a party is responsible to pay maintenance “by operation of law” is the instance where one is a biological parent of a child, irrespective of whether you are regarded as a co-holder of parental rights and responsibilities or not. Although such obligations are not “spousal” per se, such complaints are usually sought against an ex-spouse. In terms of the Children’s Act, if you are the biological parent of a child, you are obliged to pay maintenance in respect of that child’s living, schooling and other costs. Effectively, where a biological parent is not contributing to the child’s expenses the party with whom such child is residing may bring an application of a Maintenance Order on the child behalf.
The process is usually initiated in the Maintenance Court within the area where “the person to be maintained” is ordinarily resident. Admittedly, the process is a lengthy and often frustrating one, but with the help of the right attorney, it can be “streamlined” to a certain extent.
The process can be simplified as follows: (1) issuing of the Application on oath and completion of the relevant schedules, (2) having the application served on the Respondent, (3) appearing before a Maintenance Officer in chambers who will enquire as to the claim and attempt to facilitate a settlement, (4) a trial in open court should the parties not settle the matter amicably.
- Seeking the right legal advice is fundamental to ensuring that the application is “water tight”. The Application document is the foundation of your claim and one must invest in getting it right from the start.
- Having full and detailed records including all slips, invoices and bills for a period of 3 months. Start collecting your slips and filing them in an orderly fashion as these will be your “proof” of expenditure which will be vital to your case. Start an Excel spreadsheet and input the figures in order to idea on your expenses.
- Be patient and thorough in your preparations and when at Court.
Don’t let a recalcitrant ex-spouse or biological parent prejudice your or your minor child’s claims to maintenance. The Maintenance Courts are there to provide a remedy to persons needing of relief.
If you need more information or legal advice on the subject, please contact Abrahams & Gross Attorneys for assistance.
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