Spousal maintenance is also known as alimony or spousal support, depending on your country. In South Africa, we call it Spousal Maintenance.
Spousal maintenance is maintenance paid by a spouse to their current spouse, in terms of a Court Order, or to a former spouse following a decree of divorce.
Spousal maintenance is different from child maintenance.
Generally, there is a duty of support between spouses.
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.
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.
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 normally 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 normal 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.
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 to get ‘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.
No person is automatically entitled to spousal maintenance, and you must prove your claim before a Court will decide what support must be paid and for how long.
In South Africa, no law states that spousal maintenance must be ordered when the spouses 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.
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 which it finds just in respect of the payment of maintenance by the 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 in what amount and for what duration.
The payment of spousal maintenance is not a simple, clear-cut issue and will be determined based on the above factors.
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.