All about spousal maintenance


One of the consequences of marriages is a reciprocal duty of support between a husband and wife or same sex partners. This reciprocal duty comes to an end once the marriage ends. This duty can however be extended if there is an agreement between the two parties and the agreement is made an order of the court. It is important to note that this agreement can be enforced even after the death of the spouse, but maintenance cannot be claimed after the fact if maintenance was not agreed upon during divorce proceedings.


What does the law say?


Section 7 of the Divorce Act, 70 of 1979 sets out clear guidelines with regards to the duty to pay spousal maintenance after divorce: Section 7(1) of the Act provides that the court, when granting a decree of divorce, may in accordance with the written agreement between the parties, make an order with regard to the payment of maintenance by one spouse to the other. Section 7(2) states that in the absence of a settlement agreement the court may make an order which it finds suitable in respect of spousal maintenance taking various factors such prospective and existing means of the parties, financial needs and obligations, age of each party and standard of living of the parties before a divorce. Only after such an enquiry by the court will an order for maintenance be made clearly stating the amount and time for which the maintenance order will be valid. Spousal maintenance is in no way a given upon divorce and any party who claim maintenance must prove that he or she is entitled to such. A maintenance order can at any time be varied, rescinded or suspended and will not always be in place till the death or remarriage of the party receiving the maintenance.


You must prove a “need” to be supported In EH v SH 2012 (4) SA (SCA) it was held that a person claiming maintenance must establish a need to be supported by the other spouse and that if no such need can be established, it would not be “just” for the maintenance order to be issued. Thus, proving a need for maintenance is of paramount importance in obtaining maintenance.


Calculation of a spouse’s monthly maintenance


No fixed formula exists for calculating the ideal amount of maintenance payable each month. The best way to go around this is to draft the income and expenditure of each party. This will include a budget for child maintenance if minor dependent children are involved. Maintenance needs cannot be calculated in isolation. Both spouses’ financial needs must be taken into consideration. The primary caregiver of dependent minor children will obviously have more expenses in respect of the children. Therefore, certain household expenses which are incurred for both the benefit of the caregiving parent or guardian and the minor dependent children, such as bond instalments, water and electricity and groceries, should be shared between spouses proportionally to the extend the minor dependent children benefit from said expenses.


A clear distinction should be made to determine which spouse is responsible for expenses that are not incurred for both the benefit of the care-giving parent or guardian and minor children such as school fees and extramural activities. It is important to note that maintenance payments should be calculated from the paying spouse’s after-tax income. At the same time the recipient of the maintenance is exempted from taxation in as far as the maintenance payments are concerned.