When can a spouse claim maintenance after divorce?

Divorce has far-reaching financial implications, especially if one partner was financially dependent on the other and the divorce will make them financially insecure and vulnerable.

A divorce order can provide for one spouse to pay the other maintenance during the separation or after the divorce, providing much-needed relief and allowing the dependent spouse to maintain the standard of living they were used to during the marriage, particularly if they are not able to support themselves.

The rules regarding spousal maintenance are specified in Section 7(2) of the Divorce Act.

Types of spousal maintenance

The Divorce Act provides for four different kinds of spousal maintenance:

• Interim maintenance is provided pending a divorce in terms of Rule 58 of the magistrate court’s rules and Rule 43 of the High Court. A special application to the court is required before a court will grant this order.
  
  
• Token maintenance involves awarding a small amount, such as R1, usually in cases where either a spouse isn’t able to pay maintenance or the claiming spouse does not need the maintenance right away. This token maintenance allows the spouse who is awarded the maintenance to approach the court in the future to request a modification in the maintenance order if these circumstances change.
  
  
• Rehabilitative maintenance is provided for a specific duration, such as two years, for a stay-at-home spouse who is expected to find employment during that
  
  
• Permanent maintenance is payable from the divorce date until either party passes away, or the order is altered or rescinded.

Not an automatic right

There is no automatic right to spousal maintenance, and if you wish to claim it, you must motivate for it and prove that you qualify for support.

There is also no law dictating how much must be paid and for how long; this is by agreement between the parties, or at the discretion of the court.

Terms defined in settlement or court order

Spousal maintenance obligations can be defined in a settlement agreement that both parties sign prior to the divorce.

If no agreement is reached on this matter, the court may consider a range of factors before determining whether maintenance should be paid at all, and if so, how much and for how long. It will decide on an equitable amount and make the award an order of court in terms of Section 7(2) of the Divorce Act.

Factors the court considers

The court takes several factors into account before making a final decision:

The financial position of both parties;

A comparison of their respective earning abilities, financial commitments and expenses;

Their ages, as this can impact earning potential;

The length of the marriage, which may have influenced the financial independence of the parties;

The behaviour of the person from whom maintenance is being claimed and their role in the breakdown of the marriage;

Their lifestyle during the marriage; and

Any other relevant aspects that could impact on the maintenance application.

How the amount is calculated

There is no set formula, so each party must provide precise information about their income and expenditure, as well as their assets and liabilities. The value of assets and liabilities must be proven through proper documentation.

If there are minor children, each party’s financial responsibility for them is included in their expenses. The party with whom the children live will incur higher expenses for the children, and some living expenses, such as electricity, bond, and groceries, will be apportioned between the adult and children.

Other specific expenses, such as childcare, school fees, or the cost of extra murals, will be allocated in full to the relevant parent.

A maintenance order isn’t set in stone

In terms of Section 8(1) of the Divorce Act 70, spousal maintenance can be altered, rescinded, or suspended if either of the party’s circumstances change.

This includes situations in which the receiving party remarries or becomes self-supporting, or when the paying party’s income drops significantly. 

Conversely, if the paying party’s income increases substantially, they may be ordered to pay higher maintenance. Regular reviews ensure fairness to both parties.

Failure to pay is a criminal offence

A maintenance order is a court order, and so if you don’t pay, there are serious consequences, including attachment of your assets, a garnishee order or even jail. Spousal maintenance terms are legally binding on both parties, and a breach on either side could lead to legal action.