Spousal Maintenance

Introduction
Spousal maintenance is maintenance paid by a former spouse, to the other former spouse, in respect of that spouse only. It is separate and distinguishable from child maintenance, which may also be paid in addition to spousal maintenance where there are minor or dependent children.

Spousal maintenance in a divorce order
In a divorce order, a court may order one party to pay maintenance to the other either for a specified period of time (rehabilitative maintenance) or for an indeterminate period of time (until such person’s death or remarriage). Rehabilitative maintenance is maintenance which operates for a limited and specified period of time, and is intended to assist the person receiving same towards becoming financially independent of their former spouse. Once the period specified in the order comes to an end, no further maintenance can be claimed.

Factors considered in awarding maintenance

1. The existing and prospective means of each party (available assets and any other options available to produce an income).
2. The earning capacities of each party.
3. The financial needs and obligations of each party (and which of these are luxurious instead of being reasonable and/or necessary).
4. The parties’ ages (and how this affects their prospective earning capacity).
5. The duration of the marriage (the longer the marriage the greater the obligation to pay maintenance and the greater the entitlement to a higher amount).
6. The standard of living enjoyed by the parties prior to the divorce.
7. The conduct of either party leading up to the divorce where this is relevant to the reasons for the breakdown of the marriage.
8. Any transfer of assets to be made in terms of a redistribution order (applicable only to marriages out of community of property concluded prior to 1 November 1984).
9. Any other factor which the court, in its opinion, believes should be considered.

Recommended maintenance clauses Any maintenance in terms of the divorce order should provide for either a specified percentage increase, or increase according to the Consumer Price Index (CPI) annually on the date of the divorce.

1. If you wish to preserve your right to be able to claim maintenance against your former spouse at a later stage, but do not strictly require any such maintenance now, then it is important and usual to include in the divorce order an order for maintenance of R1.00 per month without an annual increase. This allows you to approach a maintenance court in future.
2. Where spousal maintenance is the only remaining issue in dispute in divorce proceedings, or is particularly contentious and a hindrance to the settlement of the matter, it is usually more cost-effective, rather than running a full trial to decide on this issue alone, to agree in the settlement agreement to preserve your rights to claim spousal maintenance. After the divorce you can then approach the nearest maintenance court for a maintenance order.

Documents needed to prove a claim for maintenance

1. Schedule of your monthly income and expenditure.
2. Documentary proof of all income received by you from any source, and of your expenditure. In particular, bank statements for all accounts which you hold or have had control over for the last 6-12 months.
3. Schedule of your assets and liabilities reflecting the current values of these.
4. Documentary proof of the value of your assets and of the amounts outstanding for each of your liabilities.
5. Any evidence you may have of your spouse’s or ex-spouse’s income and expenditure and his/her assets and liabilities.