Written by: Kyle Janse

16 October 2024

Post-Divorce Spousal Maintenance – Your Rights & Options Explained

Determining financial security after a divorce can be an emotionally charged and confusing experience. Among the most sensitive issues is whether one spouse should support the other through maintenance payments. In an earlier article, we canvassed the prerequisites for a spousal maintenance claim, which is a claim by one spouse to the other following a divorce. Understanding when and how spousal maintenance applies—and crucially, that you only have one opportunity to secure it—will be discussed in this article.

At Burger Huyser Attorneys, we understand the emotional and practical challenges you face. Our team is experienced in family law and can offer the legal guidance you need to protect your interests and ensure a fair outcome.

What Is The “Once And For All” Principle In Spousal Maintenance?

In South African law, the opportunity to claim spousal maintenance arises only at the time of divorce. If a spouse doesn’t address maintenance at the time of the divorce decree, they cannot request it later. This is known as the “once and for all” rule, meaning you have one chance—at the moment of divorce—to secure maintenance for the future.

Can A Party Ask For Spousal Maintenance In An Unopposed Divorce?

When a spouse applies for a default (unopposed) divorce, often due to the other spouse’s failure to respond, the court can still consider spousal maintenance, for example:

  •     A default divorce is granted when a summons has been served on a spouse, and the other spouse, the plaintiff, receives no response within the allotted period. The plaintiff can then approach the court to dissolve the marriage without opposition, and they can also request the court to grant them relief in terms of child maintenance and spousal maintenance.
  •     However, it is important to keep in mind that in an unopposed divorce, the court does not have the benefit of the other party opposing or providing information about their financial circumstances and may award small, nominal awards. This nominal maintenance is generally temporary and subject to a formal determination later in the maintenance court.

How Does The Court Treat A Request For Spousal Maintenance In A Divorce?

Courts are quick to acknowledge the need for child maintenance, but they approach spousal maintenance more cautiously, especially in an unopposed setting, for example:

  •     While presiding officers are sympathetic to the need for child maintenance, generally, they are less so in the case of spousal maintenance. In M v. M 2016 ZAGPJHC 30 (GSJ), the court held that if the party indicates a prima facie case for spousal maintenance, they may award a nominal interim amount for spousal maintenance, pending an application to the maintenance court for a full and final determination.
  •     What is of significant import to the court, however, is whether the spouse requires maintenance. In South African law, there are no spousal support rights to claim spousal maintenance. The person claiming maintenance must establish a need for spousal maintenance and provide proof thereof.
  •     A spouse typically does not have a right to maintenance from the other spouse if they are able to support themselves or have demonstrated this ability.
  •     However, in an unopposed divorce, as previously mentioned, the court does not have the benefit of both parties providing their financial and related information to make an informed decision regarding spousal maintenance considerations. Instead, the court relies on the submissions made by the plaintiff to advance their case.

How Can You Prove The Need For Spousal Maintenance?

The applicant must demonstrate their inability to support themselves after the divorce in order to receive spousal maintenance, as it is never guaranteed. In this case, the court considers several factors, including:

  • Both spouses’ current and potential earning capacities.
  • Each spouse’s financial needs and obligations.
  • Their ages and the marriage’s duration.
  • The standard of living during the marriage.
  • Any relevant conduct leading to the marriage’s breakdown.

If a spouse can support themselves or has shown independence, the court is less likely to award spousal maintenance. In an unopposed divorce, the court relies heavily on the applicant’s evidence, as the other spouse has not presented financial details.

What Should You Do If No Nominal Amount Has Been Ordered?

Courts have interpreted “maintenance order” as a court order that specifies an actual monetary payment. Here is some information regarding this question above:

  •     The law establishes that the reciprocal duty of support between spouses ends on the date of divorce if a court refers the issue of spousal maintenance to a competent maintenance court without awarding any nominal amount. Furthermore, once a divorce decree dissolves their marriage, neither spouse can initiate a maintenance claim against the other. This was the stance in Schutte v. Schutte 1986 (1) SA 872 (A).
  •     A maintenance order is specifically defined in Section 8(1) of the Divorce Act 70 of 1979 as ‘any order for the payment, including periodical payment, of sums of money towards the maintenance of any person issued by any court in the Republic.”
  •     The law has not yet settled whether a maintenance court ruling that refers maintenance to the maintenance court without attaching an interim amount qualifies as a maintenance order. However, on an ordinary interpretation of Section 8(1), the order must contain a payment of a sum; otherwise, it is not a maintenance order. 

What Constitutes A Nominal Amount Of Spousal Maintenance?

Even if you don’t require spousal maintenance immediately, life circumstances can quickly change. Here are some reasons why nominal maintenance is important:

  •     A nominal amount of spousal maintenance, also known as token maintenance, serves as a temporary measure until a competent maintenance court issues a final order determining the entitlement of a spouse to spousal maintenance and its appropriate amount.
  •     In some cases, and due to Schutte v. Schutte, it provides a safety net for the plaintiff in the event of a change in circumstances where the requesting party does not require spousal maintenance at the time of divorce but anticipates doing so in the future. As previously mentioned, one can only request spousal maintenance during the divorce process, not afterwards.
  •     Awarding the plaintiff a nominal amount affords them the opportunity to approach a competent maintenance court after the granting of the decree of divorce to vary the order, which will cater to their future circumstances. However, in recent years, courts have been less lenient in granting token maintenance, although this varies depending on the specific facts of each case. 

When Is There No Reciprocal Duty To Maintain The Other Spouse?

The reciprocal duty to support each other ends upon divorce unless the court specifically orders maintenance. If both spouses can maintain themselves, the court won’t impose spousal maintenance. The duty of support ends entirely on the following terms:

  •     An inevitable consequence of marriage is the reciprocal duty of support that arises between husband and wife. That is to say, spouses look to each other for support before going outside of their marriage.
  •     It is generally accepted that there exists no duty to maintain the other spouse if that spouse can maintain themselves post-divorce.
  •     A separate, but related, issue concerns arrear spousal maintenance. The law is clear that an individual cannot live in arrears, and unless the plaintiff incurred debt to maintain themselves, there can be no claim for retrospective spousal maintenance claims and, consequently, no duty of support.

Where Can You Seek Professional Guidance for Post-Divorce Spousal Maintenance?

Understanding your rights regarding spousal maintenance during divorce can be complex, and acting too late or without proper knowledge may cost you dearly in the future. Seeking legal advice before finalising your divorce is crucial. With the right legal strategy, you can secure your financial future, even when the other spouse is absent or unresponsive.

The “once and for all” rule in South African spousal maintenance law means you must address maintenance at the time of divorce—there are no second chances afterwards. If you find yourself in an unopposed divorce scenario or if you’re unsure about whether you need maintenance, ensuring at least a nominal maintenance order can provide the flexibility to seek a fair arrangement later on.

This practical insight into spousal maintenance isn’t just about legal intricacies; it’s about protecting your long-term financial well-being. At Burger Huyser Attorneys, we can help you navigate these sensitive decisions, guiding you toward securing your present and future. Contact us today for expert legal advice and representation, ensuring you make the most of your “one bite at the cherry” during divorce proceedings.

 

Contact Burger Huyser Attorneys, and book a consultation.

To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:

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