Should Spousal Maintenance be Left Solely to Judge’s Discretion?

Abstract

Parties to a divorce often do not only have to deal with the divorce itself but also with complex economic repercussions which the law seems inadequate to deal with adequately. An assessment of legislation that governs spousal maintenance, in particular section 7 of the Divorce Act 70 of 1979 makes this inadequacy clear especially if such assessment is done against the backdrop of court decisions that sought to interpret and apply this section. This inadequacy is more pronounced in marriages entered into out of community of property and out of community of profit and loss, where the most likely disadvantaged spouse is the female spouse who might not have worked during the marriage and so has not accumulated assets of her own. Although section 7(3) of the Divorce Act has attempted to provide for her, the paper seeks to argue that there is no consistency in the court’s decisions regarding maintenance awards. It is submitted further that the continued dependence of women on their husbands in marriage and after divorce undermines the economic strides made by women in general. Women should not only be seen to demand social and political equality but should also strife for economic independence and should be equally responsible for their economic survival after divorce.

DOI: 10.5901/mjss.2014.v5n23p109