Accessibility of maintenance in terms of the Maintenance of Surviving Spouses Act 22 of 1990

Abstract

It is surmised that the Maintenance of Surviving Spouses Act 27 of 1990 can be classified as a very profound, yet acceptable limitation on a married person’s right to freedom of testation. This research provides an exposition as to the background of the Act, the promulgation thereof, as well an exposition of provisions of the said Act and a critical analysis of these provisions. At common law, before the promulgation of the Maintenance of Surviving Spouses Act, a surviving spouse had no right to claim maintenance from the estate of the first dying spouse. This research shows that the main proponents for the disallowance of a claim for maintenance by the surviving spouse, can be attributed to two prominent features, namely, a person’s right to freedom of testation and due to the fact that there was no duty of support on the first dying spouse’s estate. The aim of this dissertation is to give an analysis as to the accessibility to a claim for maintenance in terms of the Maintenance of Surviving Spouses Act, as well as to outline certain issues that have been experienced thus far. As a point of departure, an exposition is given as to the reasoning and the purpose for the promulgation of the Act. An examination is further made as to what denotes a “spouse” in order to be eligible to qualify for a claim, as the Act has failed in giving a concise definition in this regard. This aspect is investigated from a traditional standpoint, as well from the standpoint based on constitutional principles. The research furthermore focuses on the determination of the claim itself, the factors that must be taken into consideration to ascertain if a claim is allowable against the estate of the first dying spouse and how the executor is to deal with the said claim. In conclusion, this research provides certain recommendations that could assist in striking a balance between the allowance of a claim against the estate of the first dying spouse, as well as the ultimate beneficiaries who would have benefitted in terms of the will, or in terms of the law of intestate succession.