What Are My Rights as a Non-Working Spouse During Divorce?
Divorce is a challenging process, especially when one spouse is financially dependent on the other. In South Africa, laws exist to ensure that both parties are treated fairly during the division of assets and determination of financial support.
The rights of a non-working spouse depend on several factors, including the marital regime governing the marriage:
- In Community of Property
If the marriage was in community of property, all assets and liabilities are shared equally between the spouses. This means that during divorce, the non-working spouse is entitled to half of the joint estate, regardless of who contributed financially. - Out of Community of Property Without Accrual
In this marital regime, each spouse retains their own assets and liabilities. A non-working spouse would not automatically be entitled to any of the working spouse’s assets unless an agreement or special provision exists. - Out of Community of Property With Accrual
The accrual system protects the non-working spouse by ensuring that the growth in each spouse’s estate during the marriage is shared equally. A non-working spouse may claim their share of the accrual to ensure they receive a portion of the wealth accumulated during the marriage.
Who Qualifies for Spousal Maintenance in South Africa?
Spousal maintenance, also known as alimony, is not automatically granted in South Africa but may be awarded depending on the circumstances. Factors considered by the court include:
- Financial Need and Ability to Pay
The non-working spouse must demonstrate financial need, while the working spouse’s ability to pay maintenance will also be evaluated. - Duration of the Marriage
Longer marriages may result in a higher likelihood of spousal maintenance being granted, particularly if the non-working spouse sacrificed career opportunities to support the family. - Standard of Living During the Marriage
The court considers the standard of living the couple enjoyed during the marriage and may aim to maintain a similar standard for the non-working spouse, where possible. - Contributions to the Marriage
Contributions are not limited to financial support. Non-financial contributions, such as raising children or managing the household, are also valued when determining spousal maintenance. - Age and Health
The age and health of the non-working spouse play a role in determining their ability to re-enter the workforce and become self-sufficient.
Types of Spousal Maintenance
Spousal maintenance can be granted in different forms:
- Rehabilitative Maintenance: Temporary financial support to help the non-working spouse become self-sufficient through training or education.
- Lifetime Maintenance: In rare cases, lifelong maintenance may be awarded if the non-working spouse is unable to support themselves due to age, health, or other factors.
- No Maintenance: If the non-working spouse can reasonably support themselves, the court may not award maintenance.
Divorces involving a non-working spouse require careful consideration to ensure fairness and financial stability for both parties. Whether through asset division or spousal maintenance, South African law aims to protect the non-working spouse while balancing the financial capabilities of both individuals.
If you are navigating a divorce and require legal guidance, the team at Burger Huyser Attorneys is here to help. Our experienced attorneys specialise in family law and will guide you through every step of the process to secure the best possible outcome. Contact us today for a consultation.
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DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
