How Long Do You Have to Support Your Spouse After Divorce?

Spousal maintenance in South Africa is not subject to a fixed statutory time limit. Under section 7(2) of the Divorce Act 70 of 1979 a court may order one spouse to support the other after divorce, and that order continues until it is varied, suspended, or terminated by a court on changed circumstances. The duty generally ends when the receiving spouse remarries, enters a permanent cohabitation relationship, becomes self-sufficient, or dies, and the paying spouse can apply to court at any point where their own financial position or the recipient’s needs have materially changed.

The Legal Framework: Where the Duty Comes From

The duty to support a former spouse after divorce derives from section 7(2) of the Divorce Act 70 of 1979, which empowers a divorce court to order a spouse to maintain the other on a change of circumstances. The common-law duty of support is recognised as the underlying principle — marriage gives rise to a reciprocal duty to maintain that does not automatically terminate when the marriage is dissolved by divorce.

Where a divorce court has not made an order, the Maintenance Act 99 of 1998 provides a parallel route through the Maintenance Court, with jurisdiction in the magisterial district where the parties reside or where the respondent is domiciled. Reform proposals have been under discussion for years — most recently the Divorce Amendment Bill and the Maintenance Amendment Bill — to introduce stricter obligations and clearer timeframes, but the law currently in force remains the 1979 and 1998 dispensation.

Burger Huyser Attorneys’ Divorce Law practice covers this area across its Gauteng branches, with Family Law matters handled under the direction of Director Anna-Mi Nel and the broader litigation team.

How Long the Duty Lasts

There is no automatic expiry: spousal maintenance continues until varied or terminated by a court. A maintenance order made at the time of divorce is enforceable indefinitely until the court that granted it orders otherwise. The duty does not, in itself, end when the divorce is finalised — it is the order (or the lack of one) that determines the position from the date of divorce forward. This is the single point most often misunderstood after a separation: silence at the time of divorce does not prevent a later claim, and a once-off settlement does not necessarily close off the obligation.

What Ends the Duty (or Allows It to Be Ended)

A variety of life events and changed circumstances can justify terminating or varying a maintenance order. The triggers below are not automatic in every case — the paying spouse usually needs to bring an application to have the order formally ended, even where the change appears decisive on the facts.

Trigger	Effect on the order	What usually needs to happen
Remarriage of the recipient	Generally terminates the order — the new spouse takes on the support duty.	Payer applies to court for variation or termination on the change of circumstances.
Permanent cohabitation by the recipient	Many courts treat this as comparable to remarriage.	Payer applies to court to terminate or reduce the order.
Death of either party	Extinguishes the obligation.	No application needed — the order falls away.
Material change in the payer’s finances (retrenchment, illness, retirement)	Grounds for variation — typically a reduction.	Payer brings a variation application supported by financial affidavits.
Recipient becomes self-sufficient (new employment, inheritance, business income)	Grounds for termination or reduction.	Payer applies to court on the change of circumstances.
Mutual agreement between the parties	Not binding until made a court order.	Agreement reduced to a court order on application.

Factors Courts Weigh When Setting or Varying Maintenance

South African courts do not apply a fixed formula — they weigh a set of well-established factors against one another, calibrated between the recipient’s need and the payer’s ability to pay. The standard list runs as follows:

• The earning capacity of each party, present and reasonably prospective.
• The standard of living enjoyed during the marriage.
• The age, health, and overall financial position of each party.
• The duration of the marriage.
• Whether the recipient has care responsibilities for children, which limit their ability to work.
• Any contribution by the recipient to the payer’s career or earning capacity — including non-financial contributions such as supporting the payer’s career through home-making and family responsibilities.
• Whether the payer will still be left able to self-maintain after the order is met — maintenance is calibrated against both need and ability to pay.

Burger Huyser Attorneys’ Family Law and Divorce Law practice handles this kind of fact-driven enquiry routinely, with directors at the Linden, Sandton, Centurion, Pretoria, Roodepoort, Bedfordview, Alberton, and Midrand branches available to take instructions across Gauteng.

How to Claim or Vary Spousal Maintenance

If maintenance was not claimed at the time of divorce, an application can still be brought later under the Maintenance Act in the Maintenance Court for the magisterial district where the claimant or respondent resides. An existing order can be varied by application to the court that granted it, supported by evidence of a material change in circumstances. The procedure is application-based: claims and variations tied to a divorce are typically routed through the Regional Divorce Court or the Family Court of the relevant Regional Court, while fresh claims under the Maintenance Act run through the Maintenance Court.

Defaulting on a maintenance order is a criminal offence under section 31 of the Maintenance Act — an arrest warrant and imprisonment are available enforcement mechanisms where a payer wilfully refuses to comply.

In Gauteng, spousal-maintenance work tied to the divorce court route is filed in the Gauteng Division of the High Court, with seats in both Johannesburg and Pretoria. The Regional Divorce Court sits at the relevant magistrate’s court jurisdiction where the divorce was heard. Fresh claims under the Maintenance Act, and ongoing enforcement, are filed in the Maintenance Court for the district where the parties live. Burger Huyser Attorneys’ Divorce Law team fields this work across its Gauteng branches — the Linden/Randburg head office handles Johannesburg-side Family Court and High Court applications, the Pretoria (Menlyn), Centurion, and Sandton branches cover the Pretoria seat of the Gauteng Division and surrounding districts, and the Midrand, Roodepoort, Bedfordview, and Alberton branches serve clients in their respective magisterial districts. Confirming the correct filing venue early on is worth doing as part of any initial consultation, since the procedural route differs materially between the divorce court and the Maintenance Court.

Spousal Maintenance vs Child Maintenance

Spousal maintenance and child maintenance are governed by different statutes, payable to different beneficiaries, and subject to different ending points. They are sometimes confused in negotiations; the table below sets out the main differences.

Feature	Spousal maintenance	Child maintenance
Source of the duty	Common law + Divorce Act 70 of 1979, section 7(2)	Common law + Children’s Act 38 of 2005 + Maintenance Act 99 of 1998
Who it benefits	The former spouse	The minor child or children
When it ends	Varied or terminated by a court on changed circumstances	When the child reaches self-sufficiency age (generally 18, or longer if still in tertiary education or otherwise dependent)
Reform focus	Long-running debate — recent bills to tighten the obligation and the timeframes	Generally treated as a strict, non-discretionary duty

Practical Considerations

Beyond the legal principles, a few practical points usually shape how an order is drafted, varied, or enforced:

• Tax treatment. Spousal maintenance paid under a court order is deductible by the payer and taxable in the hands of the recipient under section 18 of the Income Tax Act 58 of 1962. Both parties’ tax positions should be modelled before agreeing a figure, because the net cash received and the gross cash paid are not the same number.
• Currency and indexation. Orders are typically expressed in monthly rands. Annual escalation can be agreed between the parties or granted by the court, often linked to CPI or a fixed percentage.
• Default consequences. Where maintenance is paid under a Maintenance Court order, failure to pay triggers criminal liability under the Maintenance Act, including an arrest warrant. Where the order arises out of a divorce court, contempt of court and execution against property are available mechanisms.
• Pre-divorce interim maintenance. The duty of support does not pause during divorce proceedings. An application for interim maintenance can be brought at any point before the divorce is finalised, and is heard separately from the merits of the divorce action.

Burger Huyser Attorneys advises on each of these points — including the structuring of orders to handle indexation and tax effect — as part of its Divorce Law practice.

Frequently Asked Questions

Is there a fixed period after which spousal maintenance automatically stops in South Africa?

No. Spousal maintenance continues until it is varied or terminated by a court. There is no automatic expiry date in the Divorce Act or the Maintenance Act; it ends only on a court order, the recipient’s death, or on the basis of changed circumstances such as remarriage, cohabitation, or self-sufficiency.

Can I be forced to pay spousal maintenance indefinitely?

A court will not continue an order indefinitely if circumstances have changed. Either party can apply to vary or terminate the order on grounds such as the payer’s reduced ability to pay (retrenchment, retirement, illness), the recipient’s increased earning capacity, the recipient’s remarriage, or the recipient entering a permanent cohabitation relationship.

My ex-spouse never claimed maintenance at the time of the divorce — can they still claim it now?

Yes. Under the Maintenance Act 99 of 1998 a former spouse can apply to the Maintenance Court for spousal maintenance even after the divorce has been finalised, provided they can show a current need and the other spouse’s ability to pay. The court will weigh the same factors it would at the time of divorce.

Does spousal maintenance stop if my ex remarries?

In practice, yes. Remarriage of the recipient is treated as a material change in circumstances that justifies termination, because the new spouse takes on the support duty. The paying spouse should apply to court to have the order formally ended; the duty does not lapse automatically, but it is rarely enforced once a new marriage exists.

Is spousal maintenance taxable?

Yes. Spousal maintenance paid under a court order is deductible by the payer and taxable in the hands of the recipient under the Income Tax Act 58 of 1962, which means both parties’ tax positions should be considered when structuring or varying an order.

If you are facing a spousal-maintenance claim, or want to apply to vary or terminate an existing order, Burger Huyser Attorneys’ Divorce Law team can advise you on the strongest route — whether that is a divorce-court variation application, a Maintenance Court claim under the Maintenance Act, or a negotiated settlement reduced to a court order. The firm practises from its Linden, Randburg head office (49 First Avenue, 011 888 0246) and across its Gauteng branches, with appointments handled through the central contact line. The firm is rated 4.8 out of 5 across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and has specific experience in maintenance disputes as part of divorce and post-divorce matters.