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Spousal Maintenance in South Africa

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Spousal Maintenance in South Africa

Spousal Maintenance Litigation

Spousal maintenance is also known as alimony or spousal support, depending on your country. In South Africa, we call it Spousal Maintenance.

What is Spousal Maintenance?

In South Africa, spousal maintenance refers to the legal obligation of one spouse to financially support the other spouse after or during a divorce or separation. This may include providing for basic needs such as food, housing, clothing, and other expenses. The court typically determines the amount and duration of spousal maintenance. They can be based on factors such as the marriage’s length, each spouse’s earning potential, and the standard of living during the marriage.
Spousal Maintenance in South Africa
Spousal maintenance is different from child maintenance.

Does a spouse have to support their spouse during separation?

Generally, there is a duty of support between spouses.

How to get a spouse to maintain the other spouse whilst separated.

In most cases, separated spouses will approach the Court with a Rule 43 Application in the High Court or a Rule 58 Application in the Regional Court, pending the divorce.

When do I need to apply for spousal maintenance?  

  • You must apply for spousal maintenance before the divorce order is granted. 
  • You cannot apply for spousal maintenance after the decree of divorce order is granted if you did not obtain spousal maintenance as part of the divorce.

Suppose you obtained an order for indefinite spousal maintenance. In that case, either spouse may approach the Court that granted the order or the relevant maintenance Court with an application to increase, decrease or stop spousal maintenance.

What orders can be granted by the Courts regarding spousal maintenance?

The Courts have a discretion and can make an order of Court for one spouse to pay spousal maintenance to the other spouse for a fixed time, such as for one year after the divorce or an indefinite period.

Payments are typically made monthly.

Maintenance orders usually specify annual increases as a percentage, such as 6% or 10%. In certain instances, the increases are in terms of the consumer price index.

Many years ago, it was customary for women to get spousal maintenance until death or remarriage. However, society has changed; in most instances, both women and men now work full-time.

What is rehabilitative maintenance?

If the Court grants maintenance for a specified period, such as one year or five years, it is known as rehabilitative maintenance. 

This is to assist the spouse in getting ‘on their feet” after the divorce.

The Courts nowadays prefer making rehabilitative maintenance orders where there is a clear need for spousal maintenance. This means a Party may receive support for a year or two after the divorce.

Many Judges and Divorce Attorneys prefer the so-called “clean break” principle, where one spouse may have a duty to support their spouse instead makes a lump sum payment in full and final settlement of all spousal maintenance claims to that spouse.

Sad pensive young girl

Who and When is a spouse entitled to spousal maintenance?

No person is automatically entitled to spousal maintenance, and you must prove your claim before a court decides what support must be paid and for how long. 

In South Africa, no law states that spousal maintenance must be ordered when the spouse divorce. Neither spouse has an automatic right to spousal maintenance on divorce.

Spousal maintenance is regulated by Section 7 of the Divorce Act, 70 of 1979.

This act indicates that spousal maintenance can arise in two ways:

Section 7(1) of the Act states that on granting the decree of divorce, the Court may, following a written settlement agreement between the Parties, make an order regarding the payment of maintenance by the one party to the other party. 

In terms of Section 7 (2) of the Act and in the absence of a settlement agreement, the Court may make an order that it finds just in respect of the payment of maintenance by one spouse to the other by taking various factors into account.

The Court will consider the factors referred to in section 7(2) to decide if maintenance is payable and, if so, for what amount and duration.

Factors which the Court will consider when deciding on spousal maintenance after the divorce, include the following:

  • Having regard to the existing or prospective means of each Party.
  • Their respective earning capacities.
  • Their individual financial needs and obligations.
  • The age of each of the Spouses.
  • The duration of the marriage.
  • The standard of living of the Parties before the divorce.
  • Their conduct as far as it may be relevant to the breakdown of the marriage.
  • Any other factor which the Court think should be considered.

The payment of spousal maintenance is not a simple, clear-cut issue and will be determined based on the above factors.

Spousal Maintenance Dispute

Most divorces end with a signed divorce settlement agreement wherein the spouses agree on the terms of spousal maintenance or that no spousal maintenance is payable between the spouses.

When the Court grants a divorce order, the settlement agreement is made an order of the Court and is binding on the spouses.

Read more about:

The Divorce Process in South Africa

 

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