In South Africa, spousal maintenance is governed by the Maintenance Act of 1998, which sets out the legal framework for the payment of spousal support.

Spousal Maintenance Explained

Spousal maintenance is a financial support provided by one spouse to the other following a divorce or separation. Spousal Maintenance is different from child maintenance as it pertains solely to spouses and payments made from one spouse to the other spouse following a divorce for the maintenance of that spouse.

One of the most important things to understand about spousal maintenance in South Africa is that it is not automatic and must be applied for in court. The court will consider several factors when determining the amount of spousal maintenance, including the financial needs and resources of both spouses, the standard of living during the marriage, the duration of the marriage, and the earning potential of each spouse.

In terms of the Divorce Act South Africa’s Courts are granted with the discretionary power to make an award should it be necessary. Spousal maintenance can either be by way of agreement between spouses, a.k.a. Consented Spousal Maintenance or by way of a discretionary Court order a.k.a Court Ordered Spousal Maintenance.

What is Consented Spousal Maintenance?

This is where both spouses agree on whether spousal maintenance is payable and this agreement is recorded in a written Settlement Agreement (consent paper) entered into between the spouses during the subsistence of the marriage or during divorce. Upon a divorce, this written settlement agreement is incorporated into the divorce decree and one spouse will then pay maintenance to the other.

What is Court Ordered Spousal Maintenance?

In the absence of a written settlement agreement between spouses, a Court on application is asked to exercise its discretion powers to make an order which it deems just and equitable in respect of payment of spousal maintenance.

When Are You Entitled to Spousal Maintenance?

When determining an application for spousal maintenance, a court will take into account the following factors in respect of each spouse:

• existing or prospective means;

• respective earning capacities;

• financial needs and obligations;

• the parties’ ages;

• duration of the marriage;

• standard of living of the parties prior to the divorce;

• the parties’ conduct insofar as it may be relevant to the break-down of the marriage; and

• any other factor, which in the court’s opinion should be taken into account.

In order to determine what is just, the court has to consider whether maintenance is to be paid at all, and if so, what the amount should be and the period for which maintenance would be payable. It is important to note that there is no automatic right to maintenance and that any such maintenance is discretionary.

Spousal maintenance may be payable even if you and your spouse were married to each other out of community of property and without accrual.

Spousal maintenance can be ordered as a lump sum or as ongoing payments, and it can be reviewed and adjusted as necessary.

What is a Rule 43 Interim Maintenance Application?

When spouses are getting divorced, spouses are entitled to approach the court for an order granting interim maintenance pending the finalisation of the divorce proceedings. The reason for such interim maintenance applications is due to the fact that contested divorces can take time to be finalised and a spouse may require financial aid during this process.

In a rule 43 application, the following interim maintenance can be claimed:

• a contribution towards a spouse’s legal costs for the divorce proceedings;

• interim spousal maintenance;

• interim child maintenance;

• interim care of any minor child; and/or

• interim contact to any minor child.

It's important to note that spousal maintenance is not intended to be a permanent solution and is usually ordered for a specific period of time, usually until the recipient is able to support themselves financially. Also, spousal maintenance payments are not tax-deductible and are considered as income for the recipient

Barter McKellar’s family lawyers have extensive experience dealing with spousal maintenance applications and rule 43 interim maintenance applications. If you would like more advice on spousal maintenance, please contact our offices to schedule a consultation with one of our specialist divorce attorneys, who will be able to assist you.