Upon divorce, the court can grant an order for maintenance and in the case of death, the surviving spouse is able to claim maintenance from the spouse’s deceased estate. However, when a marriage ends in divorce, neither spouse has an automatic right to maintenance, but it is awarded at the discretion of the court. South African law generally prefers the principle that spouses should support themselves financially as fast as possible after divorce. In light of this, consider our adept team helping you regarding claims for spousal maintenance.
For historical reasons, in most cases it is women that seek maintenance awards, with neither spouse being automatically entitled to spousal maintenance when they get divorced. The approach that South African courts take, is the ‘clean break’ principle, meaning that the parties should become financially independent from one another as soon as possible. However, at its discretion, the court may order spousal maintenance where necessary.
There is a reciprocal duty of support between spouses during a marriage, if the spouse can provide such support and if the other spouse is in need of it. It is the responsibility of both spouses to support each other, whether it be the woman who cannot support herself, or the man. The kind of support would be that of providing for food, clothing, accommodation, medical needs and any other necessities. The support would be balanced with the income of the couple, the cost of living, and the couple’s social status.
Upon termination of the marriage whether by divorce or by death, the reciprocal duty of support ends. The Divorce Act 70 of 1979, provides for court orders regarding maintenance, and when a spouse dies, the surviving spouse may claim maintenance from the estate of the deceased, in accordance with the Maintenance of Surviving Spouses Act 27 of 1990.
A number of factors, as laid out in section 7(2) of the Divorce Act 70 of 1979, are considered by the court in determining spousal maintenance. These include:
Yes, if there is a significant change in circumstances, such as a loss of income or a change in financial needs, either party can apply for the order to be modified.
In most cases, spousal maintenance is not permanent and is meant to provide financial support until the receiving spouse can become financially independent.