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CRITERIA TO BE TAKEN INTO ACCOUNT BY THE COURTS IN ASSESSING MAINTENANCE CONTRIBUTIONS

In terms of Section 7(2) of the Divorce Act 70 of 1979 (the Act) our Courts have a discretion to be exercised judicially to make an order which it finds just for the payment of maintenance either for a limited time or until the earlier happening of the remarriage or death of the party entitled thereto. Section 7 (2) has been legislated flowing from the principle of law that parties to a marriage owe each other a resciprocal duly of support.

In broad terms Section 7 (2) reads as follows:

‘In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.'

If one breaks down the criteria set out in Section 7 (2) the Court must enquire into and have regard for the following:

•  the existing or prospective means of each of the parties,

•  their respective earning capacities, financial needs and obligations,

•  the age of each of the parties,

•  the duration of the marriage,

•  the standard of living of the parties prior to the divorce,

•  their conduct in so far as it may be relevant to the break-down of the marriage, and,

•  any other factor which in the opinion of the court should be taken into account.

The Court must then make an order it finds just:

•  for any period or

•  until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.

In keeping with the words inscribed in Section 7 (2) our Courts have made maintenance orders for limited periods of time (what has become known in legal parlance as “rehabilitative maintenance” and until death or remarriage of the Party in whose favour maintenance is paid.

Three relatively recent judgments as to how section 7 (2) has been applied are dealt with briefly in this article.

Zwiegelaar v Zwiegelaar 2001(1) SA 1208 (SCA)

The parties, both of whom were previously married and both were aged 47 years were married for eight years. No children were born of the marriage. The Trial Judge ordered the defendant to pay maintenance of R8 000 per month until the plaintiff's death or remarriage and also ordered the Defendant to pay to the Plaintiff a lump sum of R50 000 for the purchase of household necessaries.

The Defendant appealed against the order for payment of R50 000 for the purchase of household necessaries. The full bench held that s 7(2) did not permit the Court to order a lump sum payment. The Plaintiff appealed to the Supreme Court of Appeals and it now was enjoined to decide whether the trial court was empowered under s 7(2), to order the defendant to pay to the Plaintiff as part of her maintenance requirements, the sum of R50 000 for the purchase by her of household necessaries, as well as an order for monthly maintenance.

The full Court decided that in determining the question relating to maintenance requirements, section 7(2) gives a Trial Judge a wide discretion. The court also ruled that maintenance, in the matrimonial context, is a reciprocal duty of support that entails the provision of accommodation, food, clothing, medical and dental attention, and whatever else the spouses reasonably require. Where a court is satisfied that the one spouse is entitled to maintenance then it must make an order which is ‘just' and that in an appropriate case “just” meant that the accommodation needs of one spouse embraced her reasonable maintenance needs. The Supreme Court of Appeals upheld the finding of the Trial Court and reinstated Order regarding the payment of the sum of R50 000.

Coetzee v Coetzee

This is an unreported Cape Provincial Division judgment handed down on 25 February 2004. The parties were both previously married and divorced. They both had children from their previous marriages. These children had attained their majority. The parties were married to each other on 17 January 1997, out of community of property and in terms of their Antenuptial Contract excluded the accrual system. The wife was 56 years of age when judgment was delivered. She was last employed when she was 22 years of age. She did not have significant assets. The husband was wealthy. The parties enjoyed a very high standard of living during their marriage. and the marriage was reasonably happy for about five years before the marriage relationship broke down irretrievably.

The court ordered the husband to maintain the wife until the earlier of her death or remarriage by

• paying to her maintenance R8 500 per month to be increased annually by the percentage increase in the Consumer Price Index (CPI);

• bearing the cost of all the medical, dental, hospital, prescribed pharmaceutical expenses, etc;

• paying to her on or before 1 March 2004 the sum of R170 000 to enable her to purchase a motor vehicle of her choice and thereafter against return to him of the motor vehicle providing the defendant with a similar new motor vehicle with a current value of not less than R170 000 escalated at an annual percentage increase in the CPI every five years thereafter and by paying all the reasonable repair, maintenance and insurance costs of the motor vehicle;

• paying her the sum of R80 000 to enable her to purchase furniture and household effects;

• bearing the reasonable removal costs;

• making available to her at no cost to herself for her permanent occupation a dwelling of her choice with a value not exceeding R500 000.

The court held that this was not a case where the woman devoted the best years of her life to the children of her husband and to the management of the domestic household over a long period of time. However the Court found that four a five years is not such a short period in a person's lifetime that it could just be written off, and this finding seemed to motivate the Trial Judge finding it just within the meaning of Section 7 to hand down lump sum payments.

Weiner v Weiner

This is yet another unreported Judgment handed down by the Cape Town High Court on 10 June 2004. Both parties who were previously married and divorced had children from the prior marriages. On 16 December 1998 the parties were married in terms of an Antenuptial contract excluding the accrual system. At the time of the marriage, the husband was 49 years old and the wife was 42 years old. At the time of the marriage, the wife was the private secretary to the merchandising director of a trading company which post she had held since May 1992. She wanted to commence business with a friend as a travel agent which she did during 2002. The husband backed and encouraged her to embark on this new venture which turned out to be a financial disaster. Four and a half years into the marriage the husband left the common home and shortly thereafter instituted divorce proceedings. In July 2003 the wife commenced an eight-month employment contract as the personal assistant to the executive director of an organisation. After that contract expired, she actively attempted to obtain employment, but without success. In the divorce proceedings, she contended that in view of her then being 49 years of age, she was unlikely to obtain employment in the future. He contended that her prospects of employment were good having regard to her existing skills. The marriage did not last long and he submitted that she was simply relying on her age as a reason for not being able to obtain employment. His stance was that she was not entitled to a permanent maintenance order and that at best she should be awarded rehabilitative maintenance. The parties enjoyed a comfortable standard of living during the course of their marriage. He was financially comfortable and her assets net estate was not significant.

The court found that the wife was unlikely to obtain permanent employment in the future but was more likely to be able to obtain only contract or temporary employment. The court concluded that the marriage had been relatively successful for four or five years.

The Judge referred to Coetzee's case and noted that the Court held that a prayer for payment of a lump sum to enable the defendant to purchase suitable accommodation was held to be competent. The Judge considered it to be fairer to the plaintiff to deal with the defendant's claim for accommodation by means of periodic payment of a monthly amount specifically for accommodation. The court rejected the plaintiff's argument that an order for rehabilitative maintenance would be fair. The court found that, taking all the circumstances into account, it would be just to make an award of permanent maintenance. The court relied on the well known and leading judgment in Beaumont vs Beaumont 1987(1) SA 967(A) at 995H–J in which it was held, with regard to the respondent's prospects of finding employment, that

‘one should find some balance in favour of the assumption that she will not obtain work (although not necessarily giving full effect to such assumption) for justice requires that it should be the appellant who must suffer the hardship of paying an additional amount of maintenance, beyond what may turn out to be strictly necessary, rather than to allow the respond to suffer the hardship of an inadequate income if in fact she does not find employment.'

The court made an order for the payment of maintenance by the plaintiff to the defendant until the defendant's death or remarriage in the sum of R25 000 per month to be increased annually by a percentage equivalent to the annual percentage increase in the CPI.

This decision went to the full bench of the Cape Provincial Division and on 11 February 2005 by Fourie J, the appeal was dismissed with costs.

Alic Costa a leading Divorce and Family Law Specialist Attorney of many years standing and a leading authority on the topic in an article which appeared in the December 2006 issue of DE REBUS the leading Attorney's journal dealt comprehensively with the three judgments mentioned above is in disagreement with the notion that a Court has the authority under Section 7 (2) to order lump sum payments in respect of household necessaries and accommodation, and that this section only empowers the Court to order periodic payments for maintenance either for a limited period or until the earlier happening of either the party thereby entitled dying or becoming re married. He argues convincingly that the question of lump sum payments is a dangerous ground to tread on having regard to the power of the Court in certain circumstances to order a redistribution of assets in certain circumstances. The learned author expresses the view that the decision in Zwiegelaars Case establishes an alarming trend and that:

“…the new trend that appears to be developing gives rise to much concern and a possible exposure to unlimited financial claims in the event of the dissolution of the marriage”

The Learned author in his well researched and formulated article concludes with a word of caution to Lawyers advising Clients when drawing up marriage Contracts and we can do no better then to quote verbatim this sage advice:

“Legal practitioners would be well advised when advising clients on marriage contracts and the legal consequences of the termination of a marriage, to have regard to the cases dealt with in this article.”

It is also interesting and instructive to note that in the Civil Union Act of 2006, came became enacted into Law on 1 st December 2006, two provision regarding the Courts power to order maintenance in respect of registered domestic partnerships which have come to an end, and in unregistered domestic partnerships which have come to an end on separation of the Partners are contained in Sections 30and 40 respectively. In terms of these Sections the Court is vested with powers identical to those contained in Section 7(2) quoted above, when it comes to the issue of maintenance in respect of registered and unregistered domestic partnerships comprising of same – sex and opposite- sex couples which have come to an end.

To visitors to our site we conclude by once again drawing your attention to the fact that when contemplating marriage or entering a relationship whether a same sex or opposite sex relationship, it is crucially important to consult your Attorney to advise you on and to draw and register a contract best design