Spousal maintenance in South Africa refers to the financial assistance required by one spouse from another, either during divorce proceedings or after a decree of divorce has been granted. South African courts are empowered by Section 7 of the Divorce Act, Act 70 of 1979, to make an order relating to the maintenance of a party to divorce proceedings. An order in respect of maintenance could either be pursuant to a settlement agreement reached between the parties, which is made an order of court; alternatively, it could be an order granted at the discretion of the judge hearing the matter.

There is no automatic right or entitlement to spousal maintenance. As such, a spouse claiming spousal maintenance must prove, inter alia, a genuine need to be maintained and that the other party has the necessary means to provide such support.

Interim Maintenance

During the course of divorce proceedings, an option exists for a party to approach the court for an interim order regulating, inter alia, spousal maintenance pending the finalisation of the divorce proceedings. This approach is taken in terms of Rule 43 of the Uniform Rules of Court (for High Court matters), or Rule 58 of the Magistrates’ Court Rules (for Magistrates’ Court matters).

An applicant issues a notice of motion and a sworn statement in support of their application, setting out, inter alia, their needs, means, and a proposed budget. The respondent then files a sworn reply addressing the applicant’s statement, what they deem to be a reasonable contribution (if any), and their means to contribute thereto. The matter is thereafter placed on the court roll for hearing and determination.

An order granted in terms of Rule 43 or Rule 58 remains in place until a final decree of divorce is granted. The aim of an interim order regulating spousal maintenance is to ensure financial support for the financially weaker spouse while divorce litigation is ongoing.

Types of Spousal Maintenance in South Africa

Spousal maintenance can take various forms, either through settlement between the parties or as an order granted by the court.

Rehabilitative Spousal Maintenance

Rehabilitative spousal maintenance allows a spouse to be maintained for a fixed period. Its aim is to allow a dependent spouse time to regain financial independence after divorce, for example, by securing employment or developing skills to re-enter the workforce.

This form of maintenance is usually granted where the financially weaker spouse is capable of becoming self-sufficient but requires temporary support.

Permanent or Lifelong Maintenance

This type of maintenance is granted where a spouse’s age, illness, disability, or long-term homemaking responsibilities make financial independence unrealistic. As the name suggests, this maintenance usually continues until the dependent spouse remarries or passes away. Even with a permanent maintenance order, it remains subject to variation upon application to the court.

Token Maintenance

This is a nominal amount — sometimes as little as one rand per month — that keeps the legal avenue open for the recipient to seek an increase in the future should a genuine need arise. Token maintenance is usually agreed upon in limited and specific circumstances.

Lump-Sum Maintenance

The parties may agree (or the court may order) a once-off capital payment in lieu of ongoing monthly maintenance. This option provides a clean financial break between the parties.

Key Factors Courts Consider

Section 7(2) of the Divorce Act states:

“In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.”

Accordingly, Section 7(2) of the Divorce Act provides the guidelines upon which a spousal maintenance claim is based and/or considered by a court, namely:

  1. existing or prospective means of the parties;
  2. respective earning capacities of the parties;

iii.        financial needs and obligations of the parties;

  1. age of each of the parties;
  2. duration of the marriage;
  3. standard of living prior to the divorce; and

vii.       conduct of the parties, in so far as it may be relevant to the breakdown of the marriage.

What Constitutes a Fair Spousal Maintenance Contribution?

There is no hard-and-fast rule that dictates what a fair and reasonable contribution to maintenance would be; it is determined on a case-by-case basis. Factors to consider include, but are not limited to:

–           the monthly expenses of the parties;

–           the income of the parties;

–           the ability of one party to support the other; and

–           expenses which the supporting spouse would need to contribute towards the parties’ children.

Spousal maintenance in South Africa is a nuanced blend of statutory discretion, judicial precedent, and practical budgeting. Understanding the legal framework, the recognized types of support, and the factors that influence an order can equip divorcing spouses to reach settlements that respect both dignity and financial reality, while minimizing conflict and costs.