Although it is often stated that spouses have a right to spousal maintenance, it is important to note that neither spouse has a statutory right to maintenance. Whether or not spousal maintenance is to be granted is a matter of discretionary power, which is given to the courts.
Reciprocal duty of support
Spouses have a reciprocal duty of spousal support to maintain one another throughout the existence of their marriage. This duty includes providing for food, accommodation, clothing, medical care as well as litigation expenses, to name a few. This duty can also extend to luxury items depending on the standard of living the parties maintained throughout their marriage.
This reciprocal duty comes to an end upon divorce and often leaves one of the spouses with little financial security. Spousal maintenance is a remedy which assists in such a scenario.
The court rules on spousal maintenance
Spousal maintenance is not automatically granted upon divorce and a party seeking same would have to apply to court. Upon applying, certain factors will be taken into consideration, for instance:
1. Respective earning capacities of the parties.
2. Standard of living of the parties prior to divorce.
3. Duration of the marriage.
4. Financial needs and obligations of the parties.
Depending on the facts of each case, spousal maintenance can be granted for any period, until death or remarriage of the spouse in whose favour the order is granted.
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