Spousal Maintenance in South Africa: A Comprehensive Guide

​Introduction

Divorce can be a challenging and emotionally draining process. In addition to the emotional turmoil, there are practical and financial matters to consider, including spousal maintenance. Spousal maintenance, also known as alimony, is the financial support one spouse provides to the other following a divorce. In South Africa, the laws regarding spousal maintenance are complex and require careful consideration. This comprehensive guide will walk you through the key aspects of spousal maintenance in South Africa, including factors considered in awarding maintenance, recommended maintenance clauses, documents needed to prove a claim for maintenance, and the impact of cohabitation on spousal maintenance obligations.

Spousal Maintenance in a Divorce Order

In a divorce order, a court may order one party to pay spousal maintenance to the other for a specified period of time or for an indeterminate period until the recipient spouse's death or remarriage. Rehabilitative maintenance is a type of spousal maintenance that operates for a limited and specified period, aiming to assist the recipient spouse in becoming financially independent. Once the specified period comes to an end, no further maintenance can be claimed. The duration of the marriage, the standard of living enjoyed by the parties prior to the divorce, and the existing and prospective means of each party are factors considered in determining the duration and amount of spousal maintenance.

Factors Considered in Awarding Maintenance

When determining spousal maintenance, the court takes into account several factors, including the existing and prospective means of each party, their earning capacities, financial needs and obligations, and the duration of the marriage. The standard of living enjoyed by the parties before the divorce, the conduct of either party leading up to the divorce, and any transfer of assets to be made in terms of a redistribution order are also considered. Additionally, the court may consider any other factor it deems relevant to the case. It is important to note that the court has discretionary power when it comes to awarding spousal maintenance, and each case is evaluated on its individual merits.

Recommended Maintenance Clauses

To ensure clarity and avoid future disputes, it is recommended to include specific maintenance clauses in the divorce order. One common clause is to provide for a specified percentage increase or an increase according to the Consumer Price Index (CPI) annually on the date of the divorce. This helps to prevent disputes regarding the amount of maintenance over time. Another important clause is the inclusion of a maintenance order for a nominal amount, such as R1.00 per month, without an annual increase. This allows the recipient spouse to approach a maintenance court in the future if their circumstances change and they require additional maintenance.

Documents Needed to Prove a Claim for Maintenance

When making a claim for spousal maintenance, it is essential to gather the necessary documents to support your case. These documents include a schedule of your monthly income and expenditure, documentary proof of all income received and expenses incurred, a schedule of your assets and liabilities reflecting their current values, and documentary proof of the value of your assets and outstanding liabilities. It is also helpful to gather any evidence you may have of your spouse's income, expenditure, and assets.

Impact of Cohabitation on Spousal Maintenance Obligations

One common question that arises in spousal maintenance cases is the impact of cohabitation on the obligation to pay maintenance. In South Africa, the court may terminate the obligation to pay spousal maintenance if the recipient spouse enters into a cohabitation arrangement with a new partner. The specific terms of the divorce settlement agreement and the nature of the cohabitation relationship are crucial factors in determining whether the maintenance obligation should be terminated. Factors such as living under the same roof, establishing and maintaining a joint household, and contributing financially to the recipient spouse's expenses are considered by the court in determining the existence of a cohabitation arrangement.

Conclusion

Spousal maintenance is an important aspect of divorce proceedings in South Africa. Understanding the factors considered in awarding maintenance, recommended maintenance clauses, and the impact of cohabitation on maintenance obligations can help navigate the complexities of spousal maintenance cases. It is crucial to gather the necessary documents to support your claim for maintenance and to consult with a qualified attorney who specializes in family law to ensure your rights are protected throughout the process. By being well-informed and prepared, you can approach spousal maintenance with clarity and confidence.