As hard as we try, sometimes relationships just don't work out, but after many years together, raising kids and building careers, it can be hard to divide the family's assets fairly.
For example, what if one spouse worked for a salary outside the home, and the other raised the children and kept the house in order? Who is entitled to how much?
This father wrote to ask us for advice on spousal maintenance, as he explained to us that his wife has decided to separate from him and live on her own - and while he is willing to support her, he has concerns about how to share their resources.
Read his letter here:
I've been reading your articles on divorce and find them very informative, thank you.
My situation is that our relationship has gradually regressed ever since my wife had depression starting about five years ago. I think the Covid-19 lockdown has finally convinced her that she does not want me in her life anymore. She has no interest in marriage counseling and says that she just want to live on her own.
She has been a housewife, who did a fantastic job raising our children who are adults now. I think one of the reasons for her depression was actually the lack of purpose once the kids were grown up and not so dependent on her anymore.
We are married out of community of property without accrual and I would like to understand my responsibility towards spousal maintenance, please.
I accept that ultimately both parties are to blame for the breakdown of the marriage and she will always be the mother of our children, there is no way that I will let her suffer.
We both also understand that financially we will both have to scale down as living separately will incur additional cost.
My biggest worry is that she is not educated and do not understand financial risk. I am reluctant to transfer property and cash to her and then having the risk of her losing/wasting it.
What is the legal expectation in our situation? How do we determine what is fair in terms of spousal maintenance?
Your advice will be very welcome.
Spousal maintenance is discretionary
Each family will have different assets and different needs, and only a lawyer will be able to decide - if the couple themselves cannot - what is a fair and reasonable settlement.
A court will take various factors into account to determine if a spouse is entitled to spousal maintenance, and how the resources or funds should be divided, and how long spousal maintenance will be paid.
These factors include, among others, the couples' existing and prospective means, their respective earning capacities and financial needs and obligations, their ages and the length of the marriage,and their standard of living.
It is important to note that neither spouse has a statutory right to maintenance.
The Divorce Act makes it clear that spousal maintenance is discretionary and the court can also decide that no maintenance is due.
South African law prefers that after a divorce a couple become economically independent of each other as soon as possible.
However, precedent was set in the case of G v G 1987 (1) SA 48 (C) that "middle-aged women who have for years devoted themselves full-time to the managing of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to enable them to be trained or retrained for a job or profession".
Additionally, "permanent maintenance is reserved for the elderly wife who has been married to a husband for a long time and is too old to earn her own living and unlikely to remarry".
It is also accepted that both parties will have to consider adjusting their lifestyle or standard of living, as it is usually necessary when one income will be used to support two separate households.
A mutual understanding
Rushka Lee Pedro, divorce mediator and coach, and founder of Johannesburg-based mediation company Minor Impact explained that in this case, because they are married out of community of property the general rule of thumb would ultimately be 'you leave with what you came in with'.
"There isn’t any legal expectation when it comes to an out of community of property marriage regime. Approaching a court with an uncontested divorce is a quicker way to get everything resolved," she suggests.
This is usually the best avenue when there is a high level of conflict between the two parties, but they jointly agree on the division of any assets, child visitation and so on.
If there is a mutual understanding and consideration of each other's circumstances once the divorce is finalised then divorce mediation is the better option. You would basically approach a Family Law Mediator - who is not there to represent anyone but merely to be a mutual third party and facilitate the meeting, Pedro explains, with all your supporting documentation such as expenses, and a general idea of a way forward.
"In terms of Spousal Maintenance, this can be determined on your income vs everyday expenses, but also would be easier if there was a second income. During the mediation, these sort of items will be discovered accordingly, a discussion would inevitably ensue and a solid outcome documented," she says.
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