Article by listed attorney: Fawzia Khan
Once divorce proceedings are underway, can a wife claim maintenance for herself, even if she is earning an income?
Married couples owe each other a reciprocal duty of support. So if your spouse is not paying towards your general maintenance, you could take your spouse to court and claim maintenance for yourself. Off course you will need to tell the court why you are in need of maintenance and perhaps more importantly, you will also need prove that your spouse can afford the amount, which you are claiming. This reciprocal duty of spousal support ends when the marriage ends. On divorce the court has discretion whether to award spousal maintenance or not. This must not be confused with maintenance for children, as both parents are required by law to maintain their minor children in accordance with the needs of the children and the means of the parents. What happens where a spouse walks out of the matrimonial home and starts divorce proceedings? Can one spouse still claim spousal maintenance from the other? The answer to that is yes. The rationale being that even if the couple are not living together, they remain technically married right up to the date the final decree of divorce is granted.
A case heard in the Gauteng High Court in August 2016, involved a 58-year-old woman who was in the process of divorcing her husband. She claimed interim maintenance for herself of R20 000,00 per month, until the divorce was finalized. In addition she also wanted her husband to continue to make payment of the monthly bond instalment on the matrimonial home, pay all utilities on the property, pay the salary of the domestic worker, the DSTV and internet monthly subscriptions costs as well as pay a contribution towards her legal costs. Apart from those costs, she asked that her husband retain her and their minor child as beneficiaries on his medical aid. The husband denied that he should be liable to pay the wife any spousal maintenance and refused to contribute towards her legal costs. He offered to pay the wife rehabilitative maintenance for six months. His argument was that his wife was currently earning an income of approximately
R40, 000.00 per month and said that this was sufficient for her needs. After fully considering the matter, the court found that the wife indeed made out a proper case for maintenance pending the finalization of the divorce. The court ordered the husband to pay the wife R10 000,00 per month maintenance for herself and ordered the husband to also pay the bond instalments, domestic worker and the like, until the divorce was granted. The court also ordered the husband to pay a contribution towards the wife’s legal costs.
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