SPOUSAL MAINTENANCE

Spousal maintenance in South Africa is the legal duty one spouse or former spouse owes the other to provide reasonable financial support where the claimant cannot meet their own needs — enforceable during marriage under the Maintenance Act 99 of 1998, claimable on divorce under section 7 of the Divorce Act 70 of 1979, and enforceable against a deceased spouse’s estate under the Maintenance of Surviving Spouses Act 27 of 1990. The claim is not automatic: the claimant must put need and the respondent’s means on evidence, and any order can be varied, suspended, or terminated if circumstances change materially — the payer’s loss of income, illness, the recipient’s remarriage or cohabitation, or death.

What Spousal Maintenance Is (and Isn’t)

“Spousal maintenance” is financial support paid by one spouse or former spouse to the other. It is distinct from child maintenance, which is a duty owed to the child under the Maintenance Act, and from the patrimonial division of the joint estate at divorce, which is a separate claim under the matrimonial-property regime. Both spousal and child maintenance can run in the same matter, just as a forfeiture claim and a maintenance claim can run together, but each claim is decided on its own facts and its own statute.

The duty arises in three contexts:

1. During the subsistence of a marriage, where one spouse cannot meet reasonable needs from their own resources.
2. On divorce, where the divorce court makes an order under section 7 of the Divorce Act 70 of 1979.
3. Against the deceased estate of a spouse who owed a duty of support, under the Maintenance of Surviving Spouses Act 27 of 1990.

Spousal maintenance is also distinct from the constitutional and common-law duty of mutual support between spouses — that duty is satisfied informally through the household economy for as long as the parties live together. Spousal maintenance in the strict sense describes the formalised claim that arises when one spouse cannot meet reasonable needs and the court is asked to step in. Even where need is clear, the claimant must apply, and the court has a discretion to grant, refuse, or fix the amount.

The Duty of Support During Marriage

During the subsistence of a marriage, a spouse who is unable to meet their own reasonable needs can apply for a maintenance order against the other spouse under the Maintenance Act 99 of 1998. The standard applied is “reasonable maintenance” — fair in light of both parties’ means, the family’s established standard of living, and the matrimonial property regime.

How that duty takes practical shape depends on the matrimonial-property system:

• Marriages in community of property share one estate between the spouses. The duty of support is often satisfied through access to the joint estate rather than through a monthly cash payment — but a cash maintenance order under the Maintenance Act remains available where access is refused or misused.
• Marriages out of community of property, whether or not the accrual system applies, leave each spouse with a separate estate. Cash maintenance orders are the usual mechanism here.
• Customary marriages entered into after the Recognition of Customary Marriages Act 120 of 1998 carry full legal force, and the same Maintenance Act framework applies to a maintenance claim between customary spouses.
• A void or putative marriage may still give rise to a maintenance claim where the parties lived together as husband and wife and the court finds the claim fair.

Spousal Maintenance on Divorce

On dissolution of the marriage, the court hearing the divorce may make any order it deems just with respect to spousal maintenance, having regard to the parties’ existing and prospective means, earning capacities, financial needs and obligations, ages, the duration of the marriage, the standard of living during the marriage, and any other factor the court considers relevant — under section 7 of the Divorce Act 70 of 1979.

Spousal maintenance on divorce is forward-looking. It is not a share of the joint estate; it is a stream of support tied to demonstrable ongoing need. The order can take the form of:

• A monthly cash payment, often index-linked to inflation or to a defined salary benchmark.
• A once-off capitalised lump sum, commonly offset against pension interests, property transfers, or shareholdings — frequently used in higher-value estates where both parties prefer a clean break.

The forfeiture provisions of the Divorce Act, where they still apply post-2008 reform, can reduce or extinguish a spouse’s patrimonial claim where that spouse has engaged in misconduct that dissipates the joint estate. The duty to support minor children is unaffected by forfeiture.

Who Qualifies for Spousal Maintenance

Eligibility is not a single test — it shifts with the legal context in which the claim is brought:

• During marriage: a spouse can apply for a maintenance order under the Maintenance Act where the other spouse can pay but refuses or fails to do so.
• On divorce: both spouses can claim. The discretion rests with the divorce court, weighing the factors set out in section 7 of the Divorce Act.
• Against the deceased estate: a surviving spouse can claim maintenance out of the estate of a deceased spouse under the Maintenance of Surviving Spouses Act 27 of 1990 where the survivor cannot support themselves and the estate has sufficient means.
• After a void or putative marriage: a claim may still lie where the parties lived together as husband and wife, depending on the order granted.

Where the question is whether a maintenance order is worth pursuing, or whether to defend an existing one, the right forum depends on where the matter sits — the maintenance court, the divorce court, or the Master’s Office. Burger Huyser Attorneys’ Family Law and Divorce Law teams handle this work out of the Linden head office and through branches across Gauteng.

How Courts Calculate Spousal Maintenance

There is no fixed formula or percentage. South African courts apply a structured discretion weighing the parties’ means, earning capacities, the standard of living during the marriage, ages and health, duration of the marriage, and (in the divorce context) the factors listed in section 7 of the Divorce Act.

A practical starting point is the recipient’s reasonable monthly needs — food, accommodation, transport, medical aid, insurance, school fees where relevant to the marital home — minus the recipient’s own income or attributed earning capacity, with the balance tested against the payer’s ability to pay. Where the recipient has been out of the workforce for a long period, has primary care of minor children, is older, or has a health condition that limits earning, courts often impute earning capacity as low or zero. In high-net-worth matters, monthly maintenance is frequently capitalised against pension or business interests in a settlement agreement, in exchange for the recipient giving up the right to vary the order upward later.

Calculation Factor	How Courts Typically Treat It
Means of each party	Income, assets, liabilities — the starting point.
Earning capacity	What the claimant could earn if they chose to or if they were retrained.
Standard of living during the marriage	A benchmark, not a guarantee — many cases see a downward adjustment on divorce.
Duration of the marriage	Longer marriages lean more heavily in favour of the recipient.
Age and health of both parties	Material to whether earning capacity can be enhanced.
Custody of minor children	Children come first; the custodial parent’s housing and transport needs often form part of the assessment.
Conduct	Can be considered, but rarely controls the outcome on its own.

When Spousal Maintenance Ends

Spousal maintenance does not run forever by default. The most common triggers for the end of an obligation are:

• Death of either party. The obligation ends; the surviving spouse may then have a fresh claim under the Maintenance of Surviving Spouses Act.
• Remarriage of the recipient. Most spousal maintenance orders terminate automatically on the recipient’s remarriage; this should be stated expressly in the settlement agreement because default wording varies.
• Cohabitation in a permanent relationship. Courts can vary or suspend maintenance where the recipient has begun living with a new partner on a permanent basis.
• Material change in circumstances. Either party can apply to vary, suspend, or terminate a maintenance order on good cause shown — for example, the payer’s loss of employment, illness, a substantial change in income, or the recipient returning to work.
• A lump-sum capitalised settlement. Ends the periodic obligation entirely once paid.

Enforcing a Spousal Maintenance Order

Maintenance orders made under the Maintenance Act carry built-in enforcement mechanisms — emoluments attachment orders (a garnishee on salary), attachment of property, and the recovery of arrear maintenance. Maintenance orders incorporated into a divorce decree typically remain enforceable through the divorce court, with the Maintenance Act enforcement framework now applied broadly to support both kinds of order.

Common practical issues include:

• Employer failure to register an emoluments-attachment order against the payer’s salary.
• The payer working in the informal sector, leaving no traceable salary to attach.
• Cross-border cases where the payer or recipient has moved outside South Africa — the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance applies between South Africa and contracting states.

Recovery of arrears is one of the most commonly litigated issues: the obligation to pay does not lapse simply because the recipient did not enforce at the time it was due.

Common Misconceptions About Spousal Maintenance

Several widely-held assumptions fall apart once the statutory framework is applied:

• “An equal split of the estate means no maintenance.” Incorrect — patrimonial division is a separate claim; both can run together.
• “Maintenance stops automatically after five years.” Not the default — fixed-term orders exist only where the settlement or court order says so; otherwise maintenance runs until varied or terminated.
• “My spouse will pay me if my income drops after the divorce.” Only if the roles reverse — variation requires a material change in circumstances and is not automatic.
• “Spouses married out of community of property don’t owe each other maintenance.” Incorrect — the duty of support is independent of the matrimonial-property regime.
• “Spousal maintenance is automatic on divorce.” Incorrect — the claimant must allege and prove need, and the court has a discretion to refuse.

Where the underlying misconception carries a real cost — for example, settling a divorce without reserving the maintenance claim because one party assumes an equal estate split is enough — early advice from a family law attorney is worth more than a contested variation application later. Burger Huyser’s Family Law Department, headed by Director Anna-Mi Nel, advises on the maintenance layer alongside the divorce settlement for exactly this reason.

Frequently Asked Questions

Is spousal maintenance automatic after divorce in South Africa?

No — the claimant must allege and prove need, and the court has a discretion to grant, refuse, or fix the amount. A claim is rarely unopposed; both parties’ financial positions must be on evidence, and the court weighs them against the standard of living during the marriage, the duration of the marriage, and the parties’ ages and earning capacities.

How long does spousal maintenance last after divorce?

As long as the maintenance order runs. The order can be agreed for a fixed term (e.g. five years), until a specified event (typically the recipient’s remarriage), or indefinitely subject to variation on application. Indefinite orders are common where the recipient cannot reasonably re-enter the workforce due to age, health, or the length of the marriage; fixed-term orders are more common where the recipient is expected to retrain and return to work.

Can a maintenance order be changed if my income drops?

Yes — either party can apply to vary, suspend, or terminate a spousal-maintenance order on good cause shown. A material change in either party’s income, health, or financial position is the usual trigger. The application is made to the court that issued the order — the divorce court for orders incorporated into a decree, the maintenance court for orders made under the Maintenance Act.

What is the difference between spousal maintenance and child maintenance?

They are calculated separately and run on different frameworks. Spousal maintenance is one spouse’s claim against the other for financial support; child maintenance is a parent’s claim for the benefit of a minor or dependent child. Spousal maintenance typically ends on the recipient’s remarriage or cohabitation; child maintenance ends only when the child is no longer dependent — different age, financial position, and obligations thresholds apply, and the two claims coexist where both arise in the same matter.

Do I have to pay spousal maintenance if my spouse works?

Not necessarily — courts consider the claimant’s earning capacity, but they do not require a claimant to take work that does not exist, or work below the standard of living enjoyed during the marriage, particularly where the claimant has been out of the workforce for a long period, is the primary caregiver of minor children, or has age or health limitations. Courts impute earning capacity more aggressively where the claimant is young, healthy, and recently employed.

If you are facing a spousal-maintenance question — a claim being raised on divorce, an existing order you want varied, or an application you want to make or defend under the Maintenance Act — Burger Huyser Attorneys’ Family Law team can advise on your situation. Initial enquiries are taken at the Linden head office on 011 888 0246 (after-hours 061 516 6878) and through any of the firm’s branches in Roodepoort, Sandton, Pretoria (Menlyn), Bedfordview, Centurion, Alberton, and Midrand. The firm is rated 4.8/5 across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and was named Best Family Law Firm 2024 — South Africa by Lawyers Monthly and Family Law Firm of the Year 2024 — South Africa by MEA Business Awards.