What is spousal maintenance?
Personal or spousal maintenance is the maintenance that is paid by one spouse to his/her (soon-to-be) ex-spouse during and/or following a divorce. It is important to remember that neither spouse has an automatic right to spousal maintenance upon divorce. This is because the reciprocal duty of maintenance between spouses come to an end when the marriage ends, unless there is an agreement or court order to the contrary. The Court has a general discretion to make an award in respect of spousal maintenance if it believes that it will be fair in the circumstances.
In many uncontested divorces (by agreement), the parties strive towards a clean break, steering away from spousal maintenance arrangements.
Spousal Maintenance – Factors to Consider
In cases where the parties cannot reach an agreement, Section 7(2) of the Divorce Act stipulates that the Court may make any maintenance order by taking into consideration the following factors:
- The existing or expected means/wealth of each of the parties,
- Their respective earning capacities,
- Their financial needs and obligations,
- Their ages,
- The duration of marriage,
- Their standard of living prior to divorce,
- Behaviour / conduct (if relevant to the breakdown of the marriage) and
- Any other factor which the Court feels has to be taken into account.
Types of Spousal Maintenance
- Permanent / Lifelong Maintenance is payable from date of divorce and usually on a monthly basis until such time as the receiver of the spousal maintenance passes away. (If circumstances of any/both of the parties change drastically after divorce, the Court may be approached to vary or even discharge the maintenance order accordingly.)
- Rehabilitative Maintenance is for a specific, fixed period only. The fixed period cannot be shortened or extended.
- Token Maintenance is when a small amount of (for example) R1 per month as maintenance is ordered. This usually happens when the maintenance payer is not in a financial position to afford maintenance at the time of divorce, or the claimant does not need maintenance for the moment, but there is a good change that the maintenance payer might be in a better financial position in the future, or that the claimant will need maintenance in the future. This will put the receiver of this (token) maintenance in a position to approach the Court at a later stage to ask for a variation of the maintenance order for more maintenance if he/she can prove the need and affordability in the light of improved financial circumstances of the maintenance payer.
- Interim Maintenance in terms of Rule 58 (Magistrate’s Court) and Rule 43 (High Court) is maintenance payable pending divorce litigation. A special application is necessary before the Court will grant such an order.
The Dum Casta Clause
If you should be spousal maintenance payer, make sure your divorce settlement agreement contains a dum casta clause before signing it. Read our blog post about the dum casta clause for full details.
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Send your questions to the iedivorce team via our contact page for expert advice.
Nazli Williams (BCom LLB), the director of Patton Williams Attorneys (iedivorce) is an admitted attorney of the High Court of South Africa, specializing in Divorce and Family Law matters. Her fields of expertise and interest include Divorce Law, Family Law, Domestic Violence Law and International Divorce Law. Her vision is to demystify Family Law processes, helping good people in plain language and with great technology, to achieve remarkable results.