Spousal Maintenance After Divorce in South Africa: A Guide

In South Africa, spousal maintenance (also known as alimony) is not automatic after a divorce, and the court has discretion to decide whether one spouse should provide financial support to the other.

Here are 7 quick facts about spousal maintenance after divorce in South Africa:

Court Discretion: The court decides whether spousal maintenance is necessary, based on factors like financial need and the ability of the other spouse to pay.
Types of Maintenance: You can request rehabilitative maintenance (temporary) or, in rare cases, lifetime maintenance if you cannot become financially independent.
Financial Need: You must prove your financial need, and your spouse must have the means to provide support.
No Set Formula: There is no fixed formula for calculating maintenance; the court considers factors like your monthly expenses and the income of both spouses.
Non-Automatic: Spousal maintenance is not automatically granted; you must apply for it and justify the need.
Temporary Nature: Most maintenance awards are temporary to help you become financially independent, not a lifetime guarantee.
Enforcement: If your ex-spouse fails to pay maintenance, you can go to the Maintenance Court to enforce the order.

1. Legal Framework

The Divorce Act 70 of 1979 governs spousal maintenance in South Africa. It allows either spouse to apply for maintenance, but the court decides based on various factors whether maintenance will be awarded and how much it will be.

For a detailed breakdown, refer to Martin Vermaak Attorneys.

2. Types of Maintenance

There are two main types of spousal maintenance:

Rehabilitative Maintenance: This is temporary support aimed at helping a spouse become financially independent, usually covering living expenses while the recipient finds a job or completes studies. It is common in marriages where one spouse sacrificed their career for the family.
Lifetime Maintenance: Rarely awarded, this type is for spouses who are unlikely to ever be financially independent due to age, illness, or other permanent reasons.

For more information, check Van Deventer Attorneys.

3. Factors Considered by the Court

The court looks at several factors to determine if spousal maintenance should be granted, including:

Financial Needs and Means: The spouse applying for maintenance must demonstrate financial need, and the paying spouse must have the means to support them. The court evaluates the standard of living during the marriage, expenses, and the earning capacity of both parties.
Duration of the Marriage: Longer marriages often result in larger maintenance claims, especially when one spouse has been economically inactive for a significant time.
Age and Health: The older or less healthy a spouse is, the more likely the court is to grant maintenance.
Contributions to the Marriage: The court considers non-financial contributions, like raising children or managing the household.

For a deeper understanding of how courts decide, visit Divorce Laws South Africa and TMF Attorneys.

4. Duration of Spousal Maintenance

Maintenance payments may last for a fixed period or, in rare cases, for a spouse’s lifetime. Rehabilitative maintenance generally has a clear end date, often tied to the spouse’s ability to become financially self-sufficient. Lifetime maintenance may continue indefinitely if one spouse is unable to work due to health or age.

For more insights on how spousal maintenance is calculated, you can refer to Divorce Attorney Cape Town.

5. How Maintenance is Calculated

There is no set formula for calculating spousal maintenance in South Africa, but the court considers:

Monthly expenses of the spouse requesting maintenance.
The income and financial responsibilities of both parties.
The lifestyle enjoyed during the marriage.

To understand how these calculations work, you can explore Karen Botha Attorneys or Divorce Attorney.

6. Spousal Maintenance vs Child Maintenance

It’s important to note that spousal maintenance is different from child maintenance. Child maintenance is mandatory by law to ensure the child’s welfare, while spousal maintenance is at the court’s discretion based on the circumstances of the couple. For more on the distinction, refer to Divorce Attorney.

7. Enforcement of Maintenance Orders

Once a spousal maintenance order is granted, it must be followed. If the paying spouse defaults, the recipient can approach the Maintenance Court for enforcement. Non-compliance can result in wage garnishment or asset attachment.

For more detailed legal advice on enforcement, see Burnett Attorneys.

Spousal maintenance in South Africa is designed to ensure fairness after divorce, but it’s not guaranteed. The court takes into account many factors when deciding if one spouse should support the other financially. Always seek professional legal advice to understand how these factors apply to your specific case.

For a full, in-depth guide, check Divorce Attorney.