The Basics Of Maintenance In South African Divorces Explained

Written by: Joane’ Nel

Date: January 2025

Understanding Spousal, Interim and Child Maintenance in Divorce

Divorce is not something that anyone plans for when they say “I do”, but it is a reality for almost 50% of marriages in South Africa. With this unfortunate reality often comes financial uncertainty for both the children and the divorcees. Fortunately, South African legislation provides several forms of maintenance to ensure financial stability during and after a divorce. These include:

•  Interim maintenance (during divorce proceedings);
• Spousal maintenance (for financial support post-divorce); and
• Child maintenance (to cover the needs of minor children).

This article explores the types of maintenance available to divorcing parties and outlines the legal requirements for claiming maintenance.

What Is Maintenance?

‘Maintenance’ refers to a monetary amount that one person is legally obligated to pay another party after a divorce. Such a duty exists because of the nature of the relationship between the parties. The legal duty to provide maintenance is often referred to as ‘the duty to maintain or support’ and is a result of a relationship or adoption of a marriage.

What Are The Requirements To Claim Maintenance?

The following requirements need to be fulfilled in order to prove that one party has a duty to provide spousal maintenance to another:

•     There must be an existing or prior relationship between the parties.
•     The party claiming maintenance must show a clear need for support.
•     The party against whom the maintenance is being claimed must have the financial means to provide maintenance.

What Are The Types Of Maintenance?

In South Africa, there are three primary categories of maintenance, namely:

• Child maintenance
• Spousal maintenance
• Interim maintenance

What Is Child Maintenance In South Africa?

Child maintenance refers to the financial support required to raise and care for a child. The following child maintenance laws regulate child maintenance in South Africa and impose a legal responsibility on both parents to contribute to their children’s financial needs.

• The Maintenance Act 99 of 1998,
• The Children’s Act 38 of 2005,
•     The Divorce Act 70 of 1979

Key aspects of child maintenance:

• Maintenance is not just one parent’s responsibility, and therefore, both parents must contribute to their children’s upbringing.
• The amount that each parent must provide is determined according to their respective incomes; therefore, parents’ contributions might not always be equal.
• The obligation to pay child maintenance is not dependent on whether the parents were married at the time the child was born.
• The Maintenance Act 99 of 1998 specifies that both parents are equally obligated to contribute to the financial needs of their child, regardless of whether they were married at the time of the child’s birth.
• Child maintenance can be applied for by the child’s parents, guardians, or caregivers.
• If a parent fails to contribute his/her share to maintenance, the other parent may apply to the Maintenance Court to have a maintenance order issued that will compel the non-paying parent to pay an amount determined by the court.
• If the parent further fails to contribute as per the court order, then the affected parent can seek even further legal action to have the order enforced.

 

 What Is Spousal Maintenance In South Africa?

Spousal maintenance refers to financial support obligations received by a spouse/partner from a former spouse/partner because they are unable to meet their own financial needs. Spousal maintenance is not automatically granted by the court and is usually granted based on specific details. Section 7(2) of the Divorce Act 70 of 1979 regulates the factors that the court must take into consideration to determine whether a spouse is entitled to maintenance.

Key considerations for spousal maintenance:

• Courts assess each case individually to determine whether a spouse is entitled to maintenance.
• The financial standing of both parties is considered.
•     Maintenance may be granted for a limited period or, in rare cases, permanently.

What Is Interim Maintenance In South Africa?

A common question is whether one can claim spousal maintenance without being divorced yet. The short answer is no.

However, the law makes provision for interim maintenance claims pending divorce. Rule 43 of the High Court and Rule 58 of the Magistrate’s Court make provision for an interim measure to help an applicant quickly and with minimal costs.

Rule 43 or 58 can be used for the following:

• Interim child maintenance: if one parent fails to provide financial support during divorce proceedings.
• Interim spousal maintenance is provided if a spouse requires financial support until the divorce is finalised.
• Enforcement of specific payments, for example, bond payments, school fees, medical aid, etc.
• A contribution towards divorce-related legal costs.
•     A contribution towards essential items, for example, furniture, household necessities, etc.

How Does Rule 43 Or Rule 58 Benefit An Applicant?

Rules 43 and 58 deal with many of the concerns that will also be heard in the final divorce proceedings; however, they provide the spouse who is claiming interim relief with the necessary financial support until the final divorce proceedings. This means that:

• It offers temporary financial relief until the divorce is concluded.
•     It ensures that dependent children and financially vulnerable spouses are not left struggling while waiting for a final divorce order.

Who Qualifies For Interim Maintenance?

For a spouse to qualify for interim relief:

• The spouse applying must prove that they lack financial resources to support themselves or their children.
• The spouse required to support must have the financial ability to pay the requested interim maintenance.

 Although divorce is a challenging process, South African legislation thankfully makes provisions to prevent the parties from incurring a lifetime of financial difficulties following the divorce. This ensures that both children and financially dependent spouses are protected from undue hardship.

If you are considering a divorce or need legal guidance regarding maintenance claims, contact Burger Huyser Attorneys today. Our experienced family law attorneys are ready to assist you in securing the financial stability you deserve.

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:

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Midrand call 010 022 4082; Pretoria call 064 548 4838;

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