Can You Claim Spousal Maintenance if Married Out of Community of Property?

Yes — a spouse married out of community of property can claim spousal maintenance on divorce in South Africa. Property regime and maintenance are separate enquiries under the Divorce Act 70 of 1979: section 7(2) lets either spouse claim maintenance from the other after divorce, and the High Court weighs each party’s existing means, earning capacity, age, health, station in life, and the standard of living established during the marriage. The antenuptial contract that creates an out-of-community regime governs property division, not whether one spouse must support the other after divorce.

The Short Answer: Yes — Property Regime Does Not Decide Maintenance

An out-of-community-of-property marriage does not disqualify a spouse from claiming maintenance. Property regime and maintenance are separate questions under the Divorce Act 70 of 1979. Section 7 of the Act governs spousal maintenance on divorce; section 7(3) governs custody and child maintenance — this article is about section 7(2), spousal maintenance for a former spouse. A common misconception is that signing an antenuptial contract removes any right to claim maintenance; the ANC governs property only, and its terms do not reach the maintenance enquiry.

Why the Two Enquiries Are Separate

Matrimonial-property law, governed by the Matrimonial Property Act 88 of 1984 and the antenuptial contract, determines what each spouse owns on divorce. Maintenance law, governed by the Divorce Act, determines whether one spouse must support the other after the marriage ends. The two enquiries often run in parallel in the same divorce action but rely on different factual tests and different statutory sections. The same marriage can produce both a property division and a maintenance order; one does not preclude the other. This is the practical reason the same set of pleadings can raise a section 7(2) maintenance claim alongside a section 4 accrual calculation or a section 7(3) child-maintenance claim.

What “Out of Community of Property” Actually Means

Without an antenuptial contract, marriages in South Africa are in community of property by default — a joint estate is created on marriage. An antenuptial contract (ANC) can exclude community of property, with or without the accrual system. The two regimes operate as follows:

Regime	What happens on divorce
Out of community of property without accrual	Each spouse keeps their own assets and liabilities; there is no sharing of growth during the marriage.
Out of community of property with accrual	Each spouse keeps their own estate but shares the growth in each estate at divorce, calculated under the accrual formula in section 4 of the Matrimonial Property Act.

The choice between with-accrual and without-accrual changes property division but does not change the maintenance test. The same section 7(2) factors apply regardless of which regime the parties chose when they signed the ANC.

The Statutory Test: Section 7(2) of the Divorce Act 70 of 1979

Section 7(2) of the Divorce Act empowers the High Court to order a husband to pay maintenance to his wife, or a wife to pay maintenance to her husband, after divorce. The provision is gender-neutral — either spouse may approach the court for maintenance. The court weighs factors including each party’s existing means and earning capacity (including likely future capacity), age and health of each party, the standard of living established during the marriage, the duration of the marriage, and whether one spouse contributed to the other spouse’s career, earning potential, or domestic role. Post-divorce changes in circumstances can support a later variation application under section 8 of the Act.

What the Court Actually Weighs: The Section 7(2) Factors in Practice

The factors named in section 7(2) are not a mechanical checklist. In practice, the court weighs them together:

• Means and earning capacity — current income, assets, and realistic employability, not just what someone earned during the marriage.
• Standard of living during the marriage — the court tries to preserve, as far as possible, the lifestyle both parties shared before divorce.
• Duration of the marriage — longer marriages typically produce stronger maintenance claims, especially where one spouse gave up career-building years.
• Age and health — a spouse close to retirement or with health limitations will struggle to re-enter the workforce at the prior standard.
• Contributions to the marriage — non-financial contributions (raising children, managing the household, supporting the other spouse’s career) are explicitly recognised.

No single factor is decisive. The court weighs them together against the underlying purpose of section 7(2), which is to arrive at a fair maintenance outcome between former spouses who once shared a marital standard of living.

Maintenance in the Specific Context of an Out-of-Community Marriage

The fact that the claimant will keep their own assets does not disqualify them from maintenance. The court still considers overall fairness — a spouse who kept a larger asset base but has no income can still claim maintenance where the other spouse has income but little property. Where an accrual claim is being run alongside a maintenance claim, the two are argued and decided separately; one does not offset the other in the order itself. A spouse married without accrual may have less property to divide but the same right to claim maintenance.

Burger Huyser Attorneys’ Family Law practice, led by Director Anna-Mi Nel, runs both contested and uncontested divorces that turn on this distinction — the Sandton branch under her co-directorship handles a significant share of the firm’s mixed-regime divorce work.

Procedural Route: How a Maintenance Claim Is Brought

A maintenance claim can be brought in three different procedural postures, each with its own timing and evidence requirements:

1. Pendente lite (interim) maintenance — applied for in the divorce summons or by application during pending proceedings, to cover the period between separation and the final divorce order.
2. Claim in the main divorce action — pleaded as part of the divorce claim, usually in the particulars of claim or by application in the same action.
3. Application after divorce — where circumstances change (loss of income, illness, retirement of the payer), the recipient can apply under section 8 of the Divorce Act to vary or extend the maintenance order.

Evidence is by affidavit. The claimant files an affidavit setting out needs, income, and earning capacity; the respondent files a replying affidavit; the court decides on the papers or after a hearing. The factual record on means, earning capacity, and standard of living is the substantive work — the legal argument is usually shorter than the papers bundle.

The S.T.H v A.T.H (2024) Judgment — Recent Application of Section 7(2)

A Gauteng Division of the High Court (Pretoria seat) divorce judgment delivered on 28 November 2024 under case number 060610/22, S.T.H v A.T.H 2024 ZAGPPHC 1237, concerned a variation of maintenance after a long marriage. The court applied the section 7(2) factors to weigh the parties’ means, earning capacity, and standard of living during the marriage. The judgment is useful as current authority for how Gauteng courts approach variation applications and long-marriage maintenance claims, and it confirms that the section 7(2) factors are weighed in the round rather than applied mechanically.

Common Misconceptions Worth Correcting

Four misconceptions surface regularly in consultations and deserve a direct answer:

• “I signed an antenuptial contract so I cannot claim maintenance.” False; the ANC governs property only.
• “He or she has assets, so maintenance is unnecessary.” False; maintenance looks at income and earning capacity, not just asset ownership.
• “Maintenance only lasts a year or two.” False; the Act permits maintenance for an indefinite period, subject to variation on changed circumstances.
• “The court will always split income 50/50.” False; maintenance is needs-based, not equalisation.

Each of these can be tested against the section 7(2) factors, and the answer in any given case depends on what the evidence actually shows about means, earning capacity, and the marital standard of living.

What to Bring to a First Consultation With a Divorce Attorney

A first consultation is more useful if you arrive with the documents the attorney will need to assess the section 7(2) factors and the property-regime question:

• The marriage certificate and any antenuptial contract (or confirmation that none exists).
• Recent payslips, tax returns (at least two years), and bank statements for both parties.
• A list of assets and liabilities owned by each spouse.
• A realistic monthly budget reflecting post-separation needs.
• Any prior maintenance orders (interim or final) and any variation applications already filed.
• If the maintenance claim is being varied post-divorce, the existing divorce order and any prior maintenance order.

Burger Huyser Attorneys’ Divorce Law practice takes maintenance claims through the Gauteng Division of the High Court, with the Johannesburg seat and the Pretoria seat both available depending on the parties’ residence.

Frequently Asked Questions

Does an antenuptial contract stop me from claiming spousal maintenance?

No. An antenuptial contract governs the division of property between spouses — it does not control whether one spouse must support the other after divorce. Section 7(2) of the Divorce Act 70 of 1979 applies to any spouse, regardless of whether the marriage is in or out of community of property, with or without accrual.

What factors does the court weigh in a spousal-maintenance claim?

Under section 7(2) of the Divorce Act, the court weighs each party’s existing means and earning capacity, age, health, the standard of living established during the marriage, the duration of the marriage, and the non-financial contributions made by either spouse. No single factor is decisive — the court weighs them together.

Can I claim maintenance if my spouse has assets but no income?

Maintenance focuses on income and earning capacity, not on whether the spouse owns property. If the spouse who would pay maintenance has limited income but holds assets, the court can still order maintenance payable from income (and may, in some cases, order a property asset to be realised to fund maintenance, but that is a separate enquiry from the maintenance claim itself).

How long does spousal maintenance last?

There is no fixed term under the Divorce Act. The court can order maintenance for a defined period or for an indefinite duration, depending on the parties’ circumstances. Either party can apply later under section 8 to vary or terminate the order if circumstances change materially — for example, if the recipient remarries, cohabits in a permanent relationship, or finds work, or if the payer’s income drops.

Do I need a lawyer to claim maintenance, or can I do it myself?

A self-represented litigant can in principle file a maintenance claim in a divorce action, but maintenance work turns on the section 7(2) factors and on evidence of means, earning capacity, and the standard of living during the marriage. Most claimants brief a divorce attorney because the factual record — affidavits, supporting documents, and cross-examination of the other spouse’s means — is the substantive work. Burger Huyser Attorneys’ Divorce Law practice runs maintenance claims through the Gauteng Division of the High Court as part of contested and uncontested divorces.

Where does Burger Huyser handle these matters?

Burger Huyser Attorneys practises from offices in Linden (Randburg), with branches in Sandton, Roodepoort, Bedfordview, Alberton, Pretoria (Menlyn), Centurion, and Midrand. Divorce and maintenance matters for Gauteng-resident spouses are typically run through the Gauteng Division of the High Court, with the Johannesburg and Pretoria seats available depending on the parties’ residence. The head office is at 49 First Avenue, Linden, Randburg, 2194 (011 888 0246).

If you are married out of community of property and need to understand your right to spousal maintenance — or you are facing a maintenance claim and need to defend it — Burger Huyser Attorneys’ Divorce Law team can advise on the section 7(2) factors, run pendente lite (interim) maintenance applications, and represent you in the Gauteng Division of the High Court. The firm practises from its head office at 49 First Avenue, Linden, Randburg (011 888 0246) and through its branches in Sandton, Roodepoort, Bedfordview, Alberton, Pretoria (Menlyn), Centurion, and Midrand. Burger Huyser Attorneys carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and handles family-law matters including divorce, maintenance, and antenuptial contracts across Gauteng. Initial consultations are booked through the branch nearest you.