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Spousal Maintenance

  • Spousal Maintenance :

      • When the question of maintenance is raised, the first thing you should be aware of is that neither spouse is automatically entitled to spousal maintenance on divorce.

        The Divorce Act 70 of 1979 (“the Act”) is applicable to spousal maintenance claims, in particular section 7 of the Act which functions in two ways:

        1. Section 7(1) of the Act provides that when the court is granting a decree of divorce it may, in accordance with the written agreement
        between the parties, make an order with regard to payment of maintenance by one spouse to the other. This is generally for
        cases where a settlement agreement is entered into between the parties prior to finalisation of the divorce.
        2. Section 7(2) of the Act provides that in the absence of a settlement agreement the court granting a decree of divorce may make a
        maintenance order in favour of one of the spouses after considering the factors listed below:

        • their existing or prospective means;

        • their respective earning capacities;

        • their financial needs and obligations;

        • the parties ages;

        • the duration of the marriage;

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

        • the parties’ conduct insofar as it may be relevant to the breakdown of the marriage;

        • an order for redistribution of assets between the parties;

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

        The court is required to consider the factors referred to above in order to decide whether maintenance is to be paid at all and, if so, the amount to
        be paid and the period for which maintenance is to be paid. Taking the above into consideration the court then has a wide discretion to make a maintenance order that is legally fair.

        Below is a list of documents required when applying for maintenance at your local maintenance court (the magistrates court in the district where you reside):

        • identity Document of the complainant;

        • complainant’s contact details such as telephone numbers, and home and work addresses;

        • the marriage certificate or divorce order ;

        • a full list of expenses and any proof of same;

        • the complainant’s recent payslip and proof of any other income;

        • as much detail as possible regarding the defendant (the other spouse) such as telephone numbers, home and work addresses,
        list of known income and expenses, and so on;

        • you will be required to complete a maintenance application form which can be obtained from:

        The process after the application has been made:

        • the maintenance officer will inform the defendant of the application and hold an informal enquiry with the complainant and the defendant;

        • the defendant must take any proof of his/her income and expenses, such as bank statements, salary advice, receipts and so on);

        • the purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement;

        • if a settlement is reached, an agreement will be entered into between the complainant and the defendant which will be made an order of court;

        • if a settlement cannot be reached, the maintenance officer will place the matter before the court for a formal enquiry to be held;

        • the court will consider the factors as previously listed and will make an order reflecting its decision;

        • both the complainant and the defendant need to be present at the informal and formal enquiry and will be allowed to have legal representation;

        • if the defendant fails to appear in court, an order which the court deems appropriate will be given in his/her absence.

        spousal maintenance
  • Calculation of spousal maintenance

    • In South Africa there is no set formula used to calculate maintenance, therefore, it is done by a case by case and ‘needs analysis’ basis. The
      foundation of the maintenance agreement is based upon the financial needs of each party which encompasses both party’s respective incomes and expenditures.

      It is important that the claimant’s living standard should not decline after the termination of the marriage. Ideally, maintenance should enable the
      claimant to maintain their standard of living which they had during the marriage.

      In the case of EH v SH 2012 (4) SA 164 (SCA) it was found that a person claiming maintenance must establish a need to be supported by
      the other spouse, and if no such need is established, it would not be “just” for a maintenance order to be issued.

      In South Africa, as outlined by the Income Tax Act 58 of 1962, maintenance payments are exempt from taxation, even though they are viewed as an alternative income source.

      The duration of spousal maintenance

      Permanent maintenance:

      The court may grant an order pertaining lifelong maintenance to a spouse taking into consideration the duration of the marriage, the age of
      the claimant and if he/she will be able to enter the labour market again. The obligation to pay permanent maintenance will cease by remarriage or death.

      Rehabilitative maintenance:

      The court may order rehabilitative maintenance for a specific period of time to enable a party to re-educate or, retrain to enter into the labour
      market again. The maintenance will normally be awarded to a young or middle-aged individual who devoted some of their years to care for the
      children and manage the communal home, but is still able to support themselves by finding suitable employment.
      Factors taken into consideration when awarding rehabilitative maintenance:

      • length of time it will take for a spouse to re-educate themselves and to re-enter the labour market;

      • the age of the children;

      • whether the spouse claiming spousal maintenance is also the primary care giver of the children;

      • the age of the spouse.

      Spousal maintenance can be paid in monthly instalments or by a full lump sum. This will be done after a decree of divorce is granted and
      made an order of the court. The court can also consider transferring certain assets over to the spouse to put him/her in a financial position to satisfy the need of maintenance.

  • Required Documents –

    • Certified Copy of Identity Documents

    • Copy of Marriage Certificate

  • Procedure

    • The process are as follows -

      • The aggrieved party/applicant is required to approach the maintenance court in the region they reside in and proceed with the application(family court).

    • The court will allow rehabilitative maintenance for a period of one year.

    • The aggrieved party/applicant must be able to prove that he/she was supportive of his/her partner while said partner pursued business or a career.

    • The applicant must be able to show the court that his/her partner is able to afford the maintenance being claimed.
      Hi, I’m Kailash Pillay, an attorney from the city of Johannesburg. My passion for the law
      stems from a desire to improve upon the lives of the vulnerable who fall prey to a
      corrupt system.
      I studied at the University of Johannesburg where I obtained my Bachelor of Laws
      degree, the starting point to the long journey of becoming a legal practitioner.
      This profession has taught me to persevere through the complexities of the law and to
      continually develop my skills as a legal professional.