Personal

Divorce consequences
RESOURCES
• These notes are NOT sufficient for assessment purposes. It must be used
TOGETHER with the textbook , class notes, the Act and relevant case law.
• Skelton & Carnelley Ch 9 (not children)
• Sections 6 and 7(2) of the Divorce Act 70 of 1979;
• Maintenance of Surviving Spouses Act 27 of 1979;
• Swart v Swart 1980 4 SA 364 (O);
• Kroon v Kroon 1986 4 SA 616 (OK);
• Grasso v Grasso 1987 1 SA 48 (K);
• Pommerel v Pommerel 1990 1 SA 998 (OK);
• KBI v Steyn 1992 1 SA 110 (A);
• Beukes v Beukes 1995 4 SA 429 (O).
 STUDY OUTCOMES
Upon completion of this study unit, you should be able to discuss :
• The personal consequences of a divorce;
• the circumstances under which the court will order a continuation of
the maintenance duty against a spouse upon divorce;
• whether fault plays a role in this regard;
• what the concept nominal maintenance involves;
• when maintenance orders may be varied; and
• how provision can be made for one spouse to share in the other’s
pension.
• You should also be able to solve, critically evaluate en argue given
problems and legal problem statements and questions of law in sets of
facts
Personal consequences
• Parties may remarry
• May no longer inherit
intestate from each
other
• Women can change
there surname back
• Minor retain majority
status

• Divorce ends mutual

duty to maintain
 CASE STUDY
• You receive the following note from your secretary:
Good day Mrs/Mr/Ms
• Ms Rose Disney, a potential client wants to come to the office for a
consultation. She needs advice on maintenance. She is a first year student
at North-West University and wants to sue her father for maintenance.

• You want to be properly prepared for your consultation and decide to do

some legal research on the application procedure for maintenance as well
as the documentation needed for a maintenance claim.

• Draft a descriptive note on the application procedure of maintenance

claims as well as a copy of the application you need to file at court to
apply for maintenance on your client’s behalf.
Divorce Act
• When is a maintenance
• What does section 7 (1) order just?
stipulate?
• The role of token
• What does section 7(2)
stipulate? maintenance
• What does section 7(3) • Discuss the role of
stipulate? rehabilitative
• Which factors are taken into maintenance.
account? (discuss each factor
separately) • When maintenance can
• What do the courts consider? be varied?
Common Law Today

• No right to • Section 7(1)

maintenance from your • Written agreement
husband/wife after die
divorce
• Section 7(2)
• 1953 • Maintenance order in
• Section 7(2) of the favour of one party ;
Divorce Act.
Section 7

(1) A court granting a decree of divorce may in accordance

with a written agreement between the parties make an order
with regard to the division of the assets of the parties or the
payment of maintenance by the one party to the other.
(2) In the absence of an order …. 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
Section 7(1) Section 7(2)
• Settlement agreement • Maintenance
• Contractually • After the divorce
• Order of court • Finds just
• Discretion? • For any period until the
• Increase? death or remarriage of
the party
• Oral agreement?
7(2) Factors
• Existing or prospective
means
• Spouses' earning abilities
• Financial needs and
obligations
• Age
• Living standard
• Behaviour
• Section 7(3)
• Any other factor
All the factors?
"In setting forth, in s 7(2) of the Divorce Act of 1979. the
various factors to which the court is to have regard when
considering the payment of maintenance upon divorce, no
particular stress was laid on any one or more of these
factors, and they are not listed in any particular order of
importance or of greater or lesser relevance. The proper
approach is to consider each case on its own merits in the
light of the facts and circumstances peculiar to it and with
regard to those factors set out in this particular section of
the Divorce Act.

• Grasso v Grasso 1987(1) SA 48 C p 52.

Just?
What is fought to be a "just" order in the context of the
Divorce Act must contain a moral component of what is
thought to be "right" and "fair". Fairness envisaged that the
order is appropriate as between parties and when measured
against all factors in s7(2) and those others which a court
decides should also be taken in account ……. Of course any
"just" order must be "well founded" on fact and reflect
relevant and proper legal principles.

Botha v Botha 2009 (3) SA89 par 46.

For how long?

• Agreement Terminology
• Death • Rehabilitative
• Remarriage maintenance
• What is the importance • Permanent
of this? maintenance
• Token maintenance
 Spouses' earning abilities

• Grasso v Grasso • Husband: Breadwinner

• Qualified teacher • Wife: House wife
• Emansipation of
• Non working wife women.
• Equility
• In reality?
Conduct

• Swart case
• Obvious and gross
• Section 9(2)
• Substantial misconduct
• "their conduct in so far as it may be relevant to the break-down of
the marriage"
• Kroon v Kroon
• Grasso v Grasso
• NOT a form of penalty for misconduct
Standard of living
• Grasso v Grasso
• Declines
• Affluent
• Rehabilitative?
• Two households

• Kroon v Kroon
• Necessary skills
• Young (40 years)
• Employed during the marriage
 Grasso v Grasso

• "Where money is no object, there is no

reason why a wife, on becoming an ex wife,
should not, in appropriate circumstances,
continue to enjoy the same standard of living
and the same good things in life she did
whilst the marriage subsided."
• ‘(T)he idea that marriage ought to provide a
woman with a ”bread – ticket” for life is on its
way out.’ 57H – I:
Pommerel v Pommerel 1990

A wife should in my view be able to expect

the same standard of living that she had as a
married woman. In most cases it may not be
possible to achieve this goal, and of course
the husband should be able to have the same
expectation, but in the final result it is a
question of balancing up the needs of both
parties and making a equitable distribution of
the available income
P v P 1990 (1) SA 998 (E)
•
In P v P 1990 (1) SA 998 (E) the court stated
that: ‘a wife should, in my view, be able to expect
the same standard of living that she had as a
married woman. In most cases it may not be
possible to achieve this goal, and of course a
husband should be entitled to the same
expectation, but in the final result it is a question
of balancing up the needs of both parties and
making an equitable distribution of the available
income’
MB v NB 2010 (3) SA 220 (GSJ)
• In MB v NB 2010 (3) SA 220 (GSJ) it was held that ‘the
proper approach is to postulate that the parties should each
continue, following divorce, to live in the style to which they
have become accustomed for so long as this was permitted
by the resources at their disposal. If, as so often happens,
the capital and income are insufficient to meet this
standard, then each should abate their requirements
accordingly. In this limited sense the touchstone is
subjective: The issue is not what people generally would
regard as reasonable … but what the parties have come to
depend on, subject always to the criterion of affordability’
Age and duration of the marriage

• Buttner v Buttner
• 48 years
• Grasso v Grasso
• Duration of the
marriage
Existing or prospective means

• Refers to a person’s financial resources

• Includes property
• Currently
• Includes prospective means
• Clean break
• Economically independent
• Equality?
Equality

• Section 9 C
• Formal equality
• Substantive equality
• Emancipation of women
• De Facto role
Financial needs and obligations.
• Day-to-day expenses.
• "Living expenses"
Any other factor

• The best interests of the spouses children;

• The childcare responsibilities of the dependent
spouse;
• The high rate of inflation;
• The way in which each party conveyed his or her
financial position and needs
Remember s 7(3)
(3) A court granting a decree of divorce in respect
of a marriage out of community of property entered
into before the commencement of the Matrimonial
Property Act, 1984, in terms of an antenuptial
contract by which community of property,
community of profit and loss and accrual sharing in
any form are excluded; …
may, subject to the provisions of subsections (4),
(5) and (6), on application by one of the parties to
that marriage, in the absence of any agreement
between them regarding the division of their
assets, order that such assets, or such part of the
assets, of the other party as the court may deem
just be transferred to the first-mentioned party.
Reading together of sections 7(2)
&7(3)
• Redistribution of estate
• "Clean-break"
Question
• What is the difference between
rehabilitative maintenance or permanent
maintenance?
• Which one, according to you is the best
option and why?
Rehabilitative maintenance
• Earning capacity of the parties. Give maintenance
for a certain amount of time.
• Retraining in the labour market.
Rehabilitative maintenance or permanent
maintenance

It remains to be said that with the emergence

of the "working wife" and "women liberation",
that the attitude of the courts towards the
award of maintenance has been changing the
world over …….. The idea that marriage
ought to provide the wife with a bread ticket
for live…
• Hahlo
Koverjee v Koverjee 2006
“The aim of rehabilitative maintenance is to afford a spouse
extra time and resources to enable her/him to become
financially self-sufficient. I am of the view that the required
result, i.e. the ultimate self-sufficiency of defendant, will be
achieved by way of rehabilitative maintenance.

I have considered the reasonableness of defendant’s

decision not to devote more time to her career and have
found that her decision to divide her time between her
business and her children is reasonable and in their best
interests. Plaintiff’s earning capacity is undoubtedly better
than defendant’s.”
Summary
The general approach of our courts seems inclined to
award little or no maintenance at all where one or more of
the following factors are present:
(a) the woman is young or reasonably young;
(b) she is well-qualified;
(c) she has no children;
(d) she has worked throughout her married life and/or is
working at the time she applies for maintenance;
(e) she is in good health;
(f) the marriage was not of long duration.
Nominal Maintenance

• Token maintenance
• Eg R2:00 maintenance
• Later change token
maintenance to true
maintenance
Variation (Self study)

8(1) A maintenance order …. may at any time be

rescinded or varied or, in the case of a maintenance
order … if the court finds that there is sufficient
reason therefor