Spousal maintenance, also referred to as spousal support or alimony, is usually financial support paid by one spouse to the other spouse after divorce. During divorce proceedings, either spouse may ask the court to make a maintenance order against the other spouse after divorce.
Either spouse can also request for spousal maintenance to be paid during the divorce proceedings pending finalisation of the divorce.
So, where did this concept come from?
The current law on divorce and spousal maintenance in Namibia is a pre-independence law which became applicable in Namibia as a result of South Africa's administration of Namibia.
At independence in 1990, these laws became part of Namibia's laws as provided for in article 140 of our Constitution.
In terms of article 140, all pre-independence laws remain in force until they are repealed by another act or declared unconstitutional by the High Court or Supreme Court.
CURRENT LAWS
The current laws that form the basis of spousal maintenance in Namibia are the Maintenance Act (2003), Matrimonial Affairs Ordinance (1955) as amended, the Divorce Laws Amendment Ordinance (1935), and common law.
The Maintenance Act provides that husbands and wives are primarily responsible for each other's maintenance, and that maintenance orders in favour of a spouse cease if and when such a spouse remarries or when the divorce order is made.
Under the Matrimonial Affairs Ordinance (1955), the High Court may, after a marriage is dissolved, by order of the court obligate the guilty spouse to maintain the innocent spouse for any period until death or until the the innocent spouse remarries, or may make any agreement between the spouses for the maintenance of one of them by the other an order of the High Court.
However, the High Court granting the order or any other competent court may, on good cause shown (which may be a cause other than the financial means of either of the respective spouses), set aside or amend the order.
In terms of the Divorce Laws Amendment Ordinance (1935), if a divorce is granted on the grounds that one spouse is subject to an incurable mental disorder for seven years, the High Court may order that the person seeking the divorce on grounds of mental illness properly maintains the spouse against who he or she seeks the divorce.
The High Court may also make an order securing any benefits to which that spouse (the spouse against who the divorce is sought) is entitled.
'FAULT LINES'
The current divorce law does not give spouses an automatic right or entitlement to spousal maintenance.
The spouse claiming it must show fault /guilt of the other spouse (usually for adultery and desertion/leaving the common home).
The High Court has discretion on whether or not to grant spousal maintenance, meaning the party seeking spousal maintenance must, on a balance of probabilities, prove that he/she needs the maintenance.
The High Court has stated that the duty to pay maintenance and the amount payable is based on whether the guilty spouse can pay the maintenance, the ability of the innocent spouse to earn income from his or her own maintenance, the financial obligations of each spouse, the age of the parties at the time of the divorce, and the period of marriage.
REFORMS
The government is seeking to reform the current divorce laws, including the law on spousal maintenance.
One of the reforms is that designated regional magistrates will be given jurisdiction to hear and determine divorce proceedings, including making spousal maintenance orders.
Another reform is that fault will no longer be a decisive factor for granting spousal maintenance; the court will only make an order if, given the circumstances, it is just.
As per the proposed divorce law, the objective of spousal maintenance is, among others, to:
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· recognise any economic advantages or disadvantages of either parties arising from the marriage or the breakdown of the marriage;
· alleviate economic hardship of the parties to the marriage as a result of the breakdown of marriage; and
· insofar as is practicable and based on the circumstances of the case, promote the economic self-sufficiency of either party to the marriage within a reasonable period of time.
NEW APPROACH
In addition, after the divorce the divorced spouses can approach the High Court or a Magistrate's Court to amend or cancel a spousal maintenance order, but must prove how circumstances have changed since the divorce.
In essence, the proposed divorce law aims to move away from a fault-based system on which maintenance is currently based to the concept of the need for spousal maintenance by the spouse asking for it and the ability of the other spouse to pay such maintenance.
- Felicity Owoses and Denise Eixas are lawyers and legal scholars.
