By: Lerato Mokoena 22 February 2022
The issue of divorce is commonly feared due to the possibility of loss of financial support, previously provided by a spouse during a marriage.
In a marriage relationship (customary marriages included), there is a reciprocal duty of support between spouses. The spouse who claims maintenance must be in need of the maintenance and the spouse from whom maintenance is claimed must be able to provide the maintenance among other criteria as set provided for in the case of Langemaat v Minister of Safety and Security. Customary marriages carry the same legal consequences as a civil marriage including the reciprocal duty of support and maintain.
The reciprocal duty of support exists at the time of marriage and naturally ought to end at the dissolution of the marriage.
Provided that certain requirements are met a spouse may be ordered to pay spousal maintenance after the dissolution of the marriage.
Factors considered when claiming spousal maintenance
The extent of the duty of support and maintain is determined by the following:
- The couples' existing and prospective means;
- Financial needs, obligations and standard of living of the spouses concerned;
- Their respective earning capacities;
- Their ages; and
- Length of their marriage.
** Of importance, either spouse has a statutory right to maintenances, spousal maintenance is discretionary and the court after considering the above factors can also decide that no maintenance is due. The amount awarded for maintenance will depend on the facts/circumstances of each case – there is no one size fit all.
The duty to support between spouses is enforceable in a court of law unless spouses have concluded an agreement governing this duty. In terms of section 8(4)(e) of the Recognition of Customary Marriages Act, a court granting a decree for the dissolution of a customary marriage may, when making an order for the payment of maintenance, take into account any provision or arrangement made in accordance with customary law.
In the case of Baadjies v Matubela, the court confirmed that Rule 43 of the Uniform Rules of Court is applicable to spouses in a customary marriage, pending their divorce. Rule 43 provides for spouses to approach the court for maintenance and contribution towards litigation costs (pendente lite).