In South Africa, section 7(2) of the Divorce Act is the legislation that deals with the payment of maintenance in situations where no settlement agreement has been entered into between the parties and the matter of maintenance is left for the courts to decide.
The court makes a decision based on the divorcing couple’s current and potential future financial means, their earning capacities, their financial needs and obligations, ages, length of marriage, standard of living before the divorce, any behaviour that contributed to the breakdown of the marriage and any other relevant factors.
Although the person that claims rehabilitative maintenance is often the wife, a stay-at-home husband has every right to claim maintenance from his breadwinner wife on the same bases.
An award for rehabilitative maintenance is usually given when the court finds that a marriage has detrimentally affected the ability of one person to support themselves.
This is usually the wife, if she has stayed at home to look after children, although her prospects of re-educating herself and finding employment might still be fair and reasonable.
In these instances, when maintenance is awarded, the court takes into account the length of time it will take for the wife to up skill herself and re-enter the job market.
Various factors that are considered include the ages of the couple’s children, whether the wife will be the primary resident parent and the age of the wife at the time of the divorce.
In South African law, no maintenance will be awarded to a person who can support themselves or has the potential ability to support themselves.
If the wife has not abandoned or downscaled her career to remain at home and care for the children, no maintenance will be awarded.
Difficulties often arise where the wife has been married for around fifteen to twenty years and is in her early to middle forties.
She may have worked before marrying, but afterwards she devoted herself to managing the home and taking care of their children full time.
While she may be relatively young, awarding rehabilitative maintenance to her for a limited period of time assumes that she will be able to be retrain herself and find suitably-paid work.
In many cases, the ability of these women to re-enter the job market is non-existent.They find themselves without an income once the period of rehabilitative maintenance has finished.
In most cases, they are also the primary resident parent of the children.This is a difficult situation, because they’re unable to provide a proper home and the amenities they were used to before the divorce.
Courts need to look carefully at how employable a wife is when she seeks a maintenance award. If her employability is non-existent, she should be granted maintenance until her death or remarriage, and not just temporarily.
Alternatively, rehabilitative maintenance could be awarded to her on a sliding scale so that she can care for her children until they can support themselves.