Should A Spousal Maintenance Order Granted Upon Divorce Maintain the Standard of Life During the Marriage?

Case name: Grasso v Grasso

Citation: [1987] 3 All SA 47 (C) | 1987 (1) SA 48 (C)

Court: Cape of Good Hope Provincial Division (now Western Cape High Court, Cape Town)

Date of judgment: 17 January 1986

Introduction to the Matter

This case considered whether or not, a wife who enjoyed a high standard of living during her marriage, was entitled to claim an amount of Maintenance from her ex-husband that would allow her to enjoy the same standard of living after their divorce.

Overview of the Matter at Hand

The Grassos were married for 15 years. She was a qualified teacher but a stay-at-home mother, and he was a wealthy businessman and former merchant seaman. They enjoyed an upper-class lifestyle during their marriage.

When they divorced, Mrs Grasso claimed maintenance from Mr Grasso on behalf of herself and their two minor children.

Mr Grasso could afford the amount that she claimed but challenged it on the basis that she did not need it. In the circumstances, the court had to make a fair and just maintenance order.

Legal Issues Raised in the Case

The legal issue in this case relates to the factors that a court is required to consider when making an award of maintenance to a spouse upon divorce.

Relevance to Divorce and Family Law

This case established the principle that, where money is not an issue, there is no reason why an ex-wife should not continue to enjoy the same standard of life and the same good things in life that she did before the divorce. This principle also extends to the maintenance of children.

Applicable Legislation

The Divorce Act, which governs divorce in South Africa.

Summary of the Relevant Legislation

According to section 7(2), when a couple divorces, the court can make an order that one party (A) pays maintenance to the other party (B) until the death or remarriage of B.

 The Court May Consider the Following Factors in Making the Order:

• The existing or prospective means of each of the parties.
• The respective earning capacities.
• The respective financial needs and obligations.
• The age of each of the parties.
• The duration of the marriage.
• The standard of living of the parties before the divorce.
• The conduct of the parties (only as it relates to the breakdown of the marriage).
• A court order that may already be in place regarding the parties’ assets.
• Any other factor.

Explanation of How the Legislation Applies to the Case

The court had to consider each of the factors listed in section 7(2) with reference to the Grassos’ circumstances to determine what, on behalf of Mrs Grasso and the children, would be a fair and just maintenance order

Detailed Description of the Facts Leading up to the Case

The Grassos married in 1971.

Mrs Grasso was a qualified primary school teacher. She worked briefly while she was married to Mr Grasso.

However, for most of their marriage she was a stay-at home mother. She looked after the children and ran the household. She was financially dependent on her husband.

Mr Grasso was a building contractor by profession. He earned a substantial income from multiple transactions in business and property.

The Grassos enjoyed a high standard of living while they were married.

When Mrs Grasso filed for divorce from her husband, she claimed maintenance for herself and her two minor children.

The amount she claimed for maintenance was to allow her and the children to maintain the same standard of living they had enjoyed before the divorce.

Mr Grasso could afford to pay the amount of maintenance Mrs Grasso sought.

Chronological Order of Events 

• The couple married in 1971.
• Two children were born to the marriage.
• The marriage disintegrated into a state of irretrievable breakdown and Mrs Grasso eventually filed for divorce from her husband.
• The coupled agreed that she would have custody of the children.
• Mrs Grasso claimed R1500 maintenance on behalf of herself and R750 on behalf of each child.
• Mr Grasso made the following offer to Mrs Grasso:

He would pay her R600 every month. She could keep the car, certain jewellery, and her choice of furniture.

He suggested they sell the family home and invest the money into a trust for their children after taking a small share of the proceeds each.

• Mrs Grasso rejected this offer and the matter went to court.

Relationship Between the Parties Involved

Mr and Mrs Grasso were husband and wife.

Issues to be Determined

The court had to determine a fair and just maintenance award for Mrs Grasso and the children.

Primary Legal Questions Raised in the Case

The legal question before the court was whether or not Mrs Grasso was entitled to a maintenance award that allowed her and the children to continue to live at the upper-class standard of life to which they had become accustomed.

How the Issues Relate to Divorce and Family Law in South Africa

This case provides guidance in the application of section 7(2). It is especially relevant in cases of spousal maintenance, where money is not an issue.

This happens also in cases where the spouse claiming maintenance wants to maintain the standard of life that they enjoyed during the marriage.

Summary of the Arguments Made by Both Parties

Mrs Grasso provided the court with details of Mr Grasso’s numerous assets, which Mr Grasso did not dispute. Mrs Grasso also provided a breakdown of her monthly expenses to the court.

Mr Grasso did not argue against paying maintenance to Mrs Grasso. He disagreed with the amount of maintenance because he felt she was claiming more than she needed.

He was willing to pay her maintenance up to a certain date and he argued that she could resume her teaching profession and contribute towards supporting herself thereafter.

Evaluation of the Arguments

Mr Grasso chose not to place any evidence of his assets or financial needs and obligations before the court. Mrs Grasso provided a list of Mr Grasso’s assets and he did not dispute same. 

The court accepted that he was a rich man and that he could afford to meet Mrs Grasso’s demands.

Discussion of the Relevant Law

The court pointed out the following principles relating to spousal maintenance orders under section 7(2):

• There is no blanket approach to granting maintenance orders because the circumstances surrounding each case are different. Therefore, the court must consider the factors listed in section 7(2) with reference to the unique facts of each case.
• The factors listed in section7(2) are not a closed list. The court can also consider any other relevant factor to arrive at a fair and just decision.

• The factors are not listed in any particular order. They are all equally important and relevant.

Court’s Decision and Order

The court ordered Mr Grasso to pay Mrs Grasso the amount of maintenance she had claimed for herself.

The court slightly adjusted the maintenance amount she claimed for the children.

Explanation of the Reasoning Behind the Decision

In reaching this decision, the court considered the factors listed in section 7(2) in the following way:

Age Of The Parties And Duration Of The Marriage

Mrs Grasso was 40 years old, and Mr Grasso was 50 years old.

They had been married for 15 years, and, during most of this time, Mrs Grasso had not worked.

The court said that given the long duration of the marriage, she would be entitled to more than if she had been married for a short time.

Misconduct

The court said Mr Grasso’s misconduct, particularly his affair, contributed to the breakdown of the marriage.

The court considered this as a relevant factor in deciding whether or not he should be ordered to pay maintenance to Mrs Grasso.

The misconduct alone was not the issue, but rather the fact that the misconduct had contributed to the breakdown of the marriage.

Standard of Living Before the Divorce

The Grassos enjoyed a high standard of living while they were married.

The court said there is no reason why Mrs Grasso and the children should not maintain the same standard of living after the divorce, especially because Mr Grasso could afford to pay for such maintenance.

Existing or Prospective Means

The court considered the fact that Mrs Grasso was financially dependent on her husband.

The court also considered the fact that Mr Grasso was very rich and for him the maintenance was easily affordable

Earning Capacities

The court was satisfied that Mr Grasso would continue to receive a substantial income.

The court said that if Mr Grasso could afford to have his wife not to work during their marriage and instead take care of the children and the home, he should be required to make sure that this continues even after the divorce.

Financial Needs and Obligations 

Mr Grasso did not give evidence of his financial needs or obligations.

The court said that he would remain adequately provided for regardless of the amount of maintenance he would be required to pay. Mrs Grasso provided a breakdown of her monthly expenses, which the court accepted.

Any other factor

The court considered inflation but did not make allowance for it in its order for various reasons.

Implications for Divorce and Family Law

This case is important to divorce and family law because it established a principle relating to spousal maintenance:

‘where money is not an issue, there is no reason why the maintenance

granted to a spouse upon divorce should not be at the same standard

of living that the spouses enjoyed during the marriage.’

Lessons to be Learned from the Case for Potential Clients

Potential clients should be aware that the court will not make a maintenance order based only on the needs of the spouses.

According to the decision in Grasso v Grasso, the court can make a maintenance order based on the standard of life before the divorce where money is not an issue.

Recommendations for Individuals Facing Similar Situations

This case established a general principle that can be applied to similar cases. However, the outcome may be different for different people because the court will consider the unique facts of each case.  

Individuals facing similar situations are therefore advised to consult with divorce and family law specialists for advice on maintenance orders based on their individual circumstances.

Judges and Legal Teams

For the Applicant

L Weinkove

Instructed by Abe Swersky and Associates

For the Defendant

J van der Berg

Instructed by Van der Spuy and Partners

Read More: 

Spousal Maintenance in South Africa

How to calculate Child Maintenance (Use this Court Formula!)

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