Legal Matters

People tend to forget that maintenance is a primary duty owed by one spouse to another. This is irrespective whether the marriage is monogamous or polygynous. The emphasis is on need and of course whether the estate of the other spouse can afford it.

Of course, where the party seeking support is indigent and his or her spouse is unable through lack of means to meet that obligation such spouse may look to a child with means for support.

At common law a surviving spouse had no claim for maintenance against the estate of his or her deceased spouse.    This has been substantially altered by    the Maintenance of Surviving Spouses Act 27 of 1990 (MOSSA) .

The preamble to MOSSA  sets out the purpose of the Act namely ‘To provide the surviving spouse in certain circumstances with a claim for maintenance against the estate of the deceased spouse; and to provide for incidental matters.’

Section 2(1) of the Act provides:
‘2   Claim for maintenance against estate of deceased spouse
(1)        If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.

(3)   (b)        The claim for maintenance of the survivor shall have the same order of preference in respect of other claims against the estate of the deceased spouse as a claim for maintenance of a dependent child of the deceased spouse has or would have against the estate if there were such a claim, and, if the claim of the survivor and that of a dependent child compete with each other, those claims shall, if necessary, be reduced proportionately.

(d)       The executor of the estate of a deceased spouse shall have the power to enter into an agreement with the survivor and the heirs and legatees having an interest in the agreement, including the creation of a trust, and in terms of the agreement to transfer assets of the deceased estate, or a right in the assets, to the survivor or the trust, or to impose an obligation on an heir or legatee, in settlement of the claim of the survivor or part thereof.’

So in the event of a marriage being ‘dissolved by death’ the primary obligation by a spouse has now been transferred to his deceased estate, in the event that it has the means to meet that obligation and provided that the surviving spouse is unable to have her maintenance needs met from ‘own means and earnings’.

If one looks at section 2(3)(d) it would seem that it  provides for  a common sense approach to the problem between the survivor of a deceased estate and the heirs and legatees of that estate. That subsection enables an executor to enter into an agreement with these interested parties. An executor, in doing so, will of course have regard to the rights and interest of all these parties. In terms of this subsection the executor has fairly extensive powers, albeit that in executing those powers consensus has to be achieved.

One does not have to engage in expensive litigation if one has sight of MOSSA and its common sense approach to resolving issues of maintenance.

Saber Ahmed Jazbhay
Attorney