How Does Spousal Maintenance Work in South Africa?

Spousal maintenance in South Africa is the legal duty of one spouse to support the other financially, both during the marriage and (in some cases) after divorce. Claims during the marriage are governed by the Maintenance Act 99 of 1998 and are usually brought in the Maintenance Court; claims made as part of a divorce are governed by section 7 of the Divorce Act 70 of 1979, which lists the factors a court weighs — each party’s earning capacity, financial needs, age, standard of living during the marriage, duration of the marriage, and any conduct relevant to the breakdown of the marriage. Maintenance is calculated against need and ability to pay, can be paid monthly, as a lump sum, or as a deferred lump sum, and can be varied on a material change of circumstances.

The Legal Framework: Where the Duty of Support Comes From

South African law recognises the duty of spousal support in two distinct statutes:

• Maintenance Act 99 of 1998 — governs the duty of support during the subsistence of the marriage, and also governs maintenance for children (this article addresses only the spousal component).
• Section 7 of the Divorce Act 70 of 1979 — governs spousal maintenance after divorce, as part of, or following on from, the divorce order itself.

The common-law duty of support obliges a spouse to maintain the other during the marriage, irrespective of whose estate the household income falls in. The Constitution (section 28 on children’s best interests, read with the broader equality and dignity provisions) reinforces this framework, but the operative statutes for spousal maintenance remain the Maintenance Act and the Divorce Act.

Critically, the two regimes are not interchangeable. A claim made during marriage — under the Maintenance Act — is procedurally separate from a claim made in the divorce action itself under section 7 of the Divorce Act. Filing in the wrong forum, or missing a claim at the time of divorce, can have lasting consequences for a party’s financial position after the marriage ends.

Spousal Maintenance During Marriage vs. After Divorce

The forum, procedure, and statutory basis change depending on when the claim is brought. The four most common scenarios are set out below.

Stage	Governing law	Forum	Typical order
During marriage (spouses living together or apart, no divorce yet)	Maintenance Act 99 of 1998	Maintenance Court (magistrate’s court function)	Monthly payments, reviewed on change of circumstances
During separation (no divorce yet)	Maintenance Act 99 of 1998	Maintenance Court	Monthly payments, often described as interim support
On divorce	Section 7, Divorce Act 70 of 1979	Divorce court (regional or High Court, depending on the marriage)	Monthly, lump sum, deferred lump sum, or combination — by court order or settlement reduced to an order
Post-divorce variation	Section 7, Divorce Act 70 of 1979 (read with the variation rules)	The court that granted the original order	Variation on a material change of circumstances

If a spouse intends to claim maintenance in the divorce and does not raise it in the pleadings or settlement agreement, reviving that right later is difficult. For that reason, separating spouses often raise the question early with their attorney rather than waiting for the divorce trial date.

The Factors the Court Considers (Section 7 of the Divorce Act)

Section 7 of the Divorce Act lists the factors the court weighs when deciding whether to make a spousal maintenance order after divorce and how to structure it. The court does not apply them mechanically; it balances them against one another.

1. Existing or prospective earning capacity of each party — the court looks at what each spouse can earn, not only what they currently earn.
2. Financial needs and obligations of the party claiming maintenance.
3. Age of the parties.
4. Standard of living enjoyed during the marriage.
5. Duration of the marriage.
6. Conduct of the parties — but only insofar as it relates to the breakdown of the marriage, not moral fault unrelated to the breakdown.

The court also weighs non-financial contributions (homemaking, child-rearing, supporting a spouse’s career) indirectly through the earning-capacity lens — the longer a spouse has been out of the formal workforce, the more credible a finding of reduced earning capacity tends to be. Practitioners experienced in maintenance disputes typically draft a sworn itemised budget alongside a sworn statement of assets and liabilities so that each factor is supported by evidence rather than argument alone.

How to Claim Spousal Maintenance

Whether the claim is in-marriage or post-divorce, the procedural building blocks are similar — only the forum and the form of application change.

1. Confirm which regime applies — in-marriage duty (Maintenance Act) or post-divorce claim (Divorce Act section 7).
2. Document income, expenses, and assets for both parties — pay slips, bank statements, IRP5/IT3 certificates, a sworn statement of assets and liabilities.
3. For in-marriage claims, lodge the application at the local Maintenance Court. A maintenance officer investigates, attempts to secure a written agreement between the parties, and refers the matter to the magistrate if no agreement is reached.
4. For divorce claims, raise spousal maintenance in the divorce summons or as a counterclaim. If the parties agree, the terms form part of the settlement agreement and are made an order of court.
5. The court evaluates the section 7 factors (or the equivalent balancing under the Maintenance Act for in-marriage claims) and grants an order.
6. Settlement is given weight — where the parties agree, a settlement reduced to a court order carries the same weight as a contested order.

Calculating Maintenance: Approaches and Considerations

The starting point is the claimant’s reasonable need — typically supported by a sworn, itemised monthly budget. The upper limit is the respondent’s ability to pay, assessed after their own reasonable living expenses and other legal obligations (including any child maintenance order).

The “self-sufficiency” principle runs through the calculation. The court does not obligate a former spouse to fund the claimant’s preferred standard of living indefinitely where retraining or partial re-entry into the workforce is feasible. The court will, however, give proper weight to age, health, and the realistic time it would take the claimant to become self-supporting.

Payment can be structured in four common ways:

Structure	When it is typically used
Monthly payments	Ongoing need where the claimant cannot reasonably become self-supporting in the foreseeable future.
Lump sum	Clean break, capitalisation of a future stream of payments, or where the respondent has a once-available asset (such as a sale or maturity).
Deferred lump sum	The claimant maintains themselves in the short term and receives a capital amount at a future trigger — for example, a property sale or the payer’s retirement.
Combination	A smaller monthly amount plus a once-off capital component. Common in practice where there is both an ongoing need and an opportunity to settle part of the obligation upfront.

Tax treatment: spousal maintenance payments are generally not deductible for the payer and not taxable in the hands of the recipient. This is materially different from child maintenance, which has its own treatment under the Maintenance Act. Anyone modelling a maintenance order should not assume the post-tax position matches a simple salary calculation.

Varying or Terminating an Existing Maintenance Order

A maintenance order — whether made during marriage or after divorce — is not fixed for life. Either party can apply to vary it on a material change of circumstances. Recognised triggers include:

• The recipient’s income rises substantially.
• The payer’s income falls substantially.
• The recipient cohabits in a supportive relationship.
• The payer reaches retirement age.
• A material change in the parties’ health or financial needs.

The variation application is usually brought in the same court that granted the original order. The court reads the new application against the same section 7 factors — it is a recalibration, not a relitigation.

Cohabitation with a new partner does not automatically terminate spousal maintenance, but it is a recognised factor the court will weigh. Remarriage of the recipient, by contrast, generally terminates spousal maintenance depending on the terms of the original order. Anyone considering a variation should pull the original order first and read it carefully, since the wording of the order often controls what kind of change can be argued.

Enforcement When Maintenance Isn’t Paid

Maintenance orders are debts that can be enforced. The Maintenance Court has a range of tools available, and the right one depends on the defaulter’s circumstances:

• Automatic deduction from salary — a garnishment-style order under section 18 of the Maintenance Act, applied for at the Maintenance Court on the back of the existing order. This is one of the more reliable enforcement tools for ongoing monthly maintenance.
• Attachment of property — used where there are identifiable assets that can be attached to satisfy the arrears.
• Sheriff-led execution — for the recovery of arrears already accrued.
• Committal proceedings — in serious or wilful cases of non-payment, the defaulter can face imprisonment for contempt of court. This is reserved as a last resort.

Variation is the legal remedy for a payer whose circumstances genuinely change. Wilful non-payment without a variation application is treated as contempt, not as good-faith non-payment. A payer who cannot keep up with the order should bring a variation application promptly rather than allow arrears to build, because arrears themselves become a separate enforcement problem.

Frequently Asked Questions

What is spousal maintenance in South Africa?

Spousal maintenance is one spouse’s legal duty to support the other financially, both during the marriage and (in some cases) after divorce. During the marriage the duty is governed by the Maintenance Act 99 of 1998 and enforced through the Maintenance Court; after divorce it is governed by section 7 of the Divorce Act 70 of 1979 and is set as part of the divorce order.

Who qualifies for spousal maintenance after a divorce in South Africa?

There is no automatic entitlement — a former spouse must show financial need, weighed against the other party’s ability to pay. The court applies the section 7 factors (earning capacity, financial needs, age, standard of living during the marriage, duration of the marriage, and conduct related to the marriage breakdown) to decide whether maintenance is appropriate and how much.

How is spousal maintenance calculated?

Calculation starts from the claimant’s reasonable monthly need, set against the respondent’s ability to pay after their own reasonable living expenses. The court uses an itemised sworn budget, considers whether the claimant can become partially or fully self-supporting with retraining, and structures the order (monthly, lump sum, deferred lump sum, or combination) to suit the facts. Tax is generally not deductible for the payer and not taxable for the recipient.

Can spousal maintenance be increased or reduced after the order is granted?

Yes. Either party can apply to vary an existing spousal maintenance order on a material change of circumstances — for example, a change in income, retirement, or a new supportive relationship. The court applies the same section 7 factors it used at the original hearing.

What happens if my ex-spouse stops paying spousal maintenance?

Maintenance orders are legally enforceable. The most common enforcement route is automatic salary deduction applied for at the Maintenance Court on the back of the order; other routes include attachment of property and, in serious cases of wilful non-payment, committal proceedings for contempt. A payer whose circumstances genuinely change should bring a variation application — wilful non-payment without one is treated as contempt.

If you need to claim or defend against a spousal maintenance claim — whether during the marriage or after divorce — Burger Huyser Attorneys’ Family Law and Divorce Law teams can advise on both the Maintenance Act and the section 7 Divorce Act route from a single practice. The firm has qualified mediators on staff for parties who prefer to settle without a contested hearing. Get in touch at the head office in Linden, Randburg (49 First Avenue, 011 888 0246 / 061 516 6878), open Monday to Friday 7:30am to 4:30pm, or through any of the firm’s Sandton, Centurion, Pretoria, Bedfordview, Alberton, Roodepoort, or Midrand branches. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).