A key question in divorce proceedings in South Africa is spousal maintenance – essentially: "Will I have to pay maintenance?" or "Am I entitled to maintenance?". The answer depends on various factors, including the length of the marriage, the income of each spouse and the standard of living during the marriage. This article explores how spousal maintenance is determined in South Africa, providing essential insights for those going through a divorce.

Understanding Spousal Maintenance

Spousal maintenance is a legal obligation on one spouse to provide financial support to the other either during and/or after divorce. Its aim is to ensure that the lower-earning or non-earning spouse is not left in financial hardship following the end of the marriage.

The concept of spousal maintenance often gets confused and/or conflated with the martial regime that the divorcing spouses were married in. The concept of spousal maintenance is separate and distinct from the parties martial regime, e.g. even if spouses are married out of community of property, without accrual, a spouse may still be entitled to maintenance during and/or after the divorce divorce.

Factors Influencing Spousal Maintenance

1. Length of the Marriage: Longer marriages may result in higher maintenance, especially if one spouse has become financially dependent on the other.

2. Earning Capacity of Each Spouse: The court considers the current and potential income of each spouse.

3. Standard of Living During the Marriage: Maintenance aims to allow both parties to continue a standard of living reasonably comparable to that enjoyed during the marriage.

4. Age and Health of Each Spouse: Age and health can impact earning capacity and needs, influencing maintenance decisions.

5. Contributions to the Marriage: This includes both financial contributions and non-financial contributions like homemaking and child-rearing.

Calculating Spousal Maintenance

There is no fixed formula for calculating spousal maintenance in South Africa. Each case is evaluated on its merits, with the court considering the aforementioned factors.

Temporary vs. Permanent Maintenance

• Temporary Maintenance: Also known as "rehabilitative maintenance," it's provided for a specific period to allow the receiving spouse time to become self-sufficient.

• Permanent Maintenance: More common in long marriages, especially where one spouse has limited prospects of becoming financially independent.

Legal Process for Claiming Maintenance

• Maintenance Claim: Part of the divorce process, where one spouse requests maintenance in their divorce petition.

• Negotiation and Mediation: Spouses can negotiate maintenance terms, sometimes with the help of a mediator.

• Court Decision: If an agreement can't be reached, the court will make a decision based on the evidence presented.

Conclusion

Spousal maintenance in South Africa is a complex issue, influenced by numerous factors including the length of the marriage, each spouse's financial situation and the standard of living during the marriage. Understanding these factors and seeking appropriate legal counsel is crucial for anyone facing a divorce to ensure a fair and equitable outcome.

Barter McKellar’s divorce attorneys have extensive experiencing on advising on all aspects of divorce matters, including spousal maintenance. If you would like to find out more, contact our offices today to schedule a consultation with one of our specialist divorce law lawyers.