Spousal maintenance after divorce is to be distinguished from maintenance for children. It is always preferable to settle all disputes in a divorce but where parties have not entered into a written agreement, section 7(2) of the Divorce Act applies. It provides that the court may, having regard to the existing or prospective means of the parties, their earning capacities, financial needs and obligations, age, duration of the marriage, standard of living, conduct in so far as it may be relevant to the breakdown of the marriage, any order for redistribution of assets and any other relevant factor, make an order for payment of maintenance for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.

Clearly the court has a wide discretion but in Pillay v Pillay, the court stated that in considering the question of maintenance, the aim should be to ensure a clean break between the parties, if at all possible, with a view to ensuring that the parties should become economically independent of each other as soon as possible after divorce.

Where the parties do not have sufficient assets on divorce and the clean break can’t be achieved immediately, the court will consider a rehabilitative maintenance order in favour of the dependent spouse in order to effect a deferred clean break between the parties. Permanent maintenance will be awarded to a wife who has been married for a long time and is too old to earn her own living and unlikely to re-marry.

Our courts have found that the parties should 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.

Divorce is no longer based on fault and maintenance is not considered as a penalty for misconduct. Adultery and desertion might in certain instances merely be symptoms, not causes, of a marriage breakdown. Conduct which could not be considered to be morally very blameworthy, such as refusal to engage in conversation, might be a factor leading to marriage breakdown.

Each divorce has its own dynamics, but it is reassuring to know that maintenance is not awarded arbitrarily.