A claim for spousal maintenance is not an automatic right. If you're currently employed and can support yourself financially, you may not qualify.
Our courts generally favour a clean break principle, aiming to sever financial ties between divorcing spouses. This allows both parties to start fresh without ongoing financial obligations. However, there may be exceptions where the court deviates from the clean break principle. These exceptions can include situations where one spouse cannot support themselves or if there are significant disparities in earning capacity.
There are two types of spousal maintenance:
- Lifelong spousal maintenance continues until death, remarriage, or cohabitation with another partner.
- Rehabilitative spousal maintenance is for a shorter period of time. The duration is determined on a case-by-case basis. Its purpose is to assist you in re-entering the workforce and becoming self-sufficient. You may use this time to improve your skills, but you must be able to support yourself by the end of the period.
The court will consider the following factors to determine if you have a claim for spousal maintenance and what type:
- Need and Ability:
- Need: The court will assess the dependent spouse's financial needs and whether they can meet those needs independently.
- Ability: The earning capacity of both parties will be considered, including factors like age, education, skills, and health.
- Duration of the Marriage: A longer marriage may indicate a greater need for spousal maintenance, as the dependent spouse may have sacrificed career opportunities or financial independence. However, a shorter marriage might still warrant maintenance if one spouse has been significantly disadvantaged.
- Standard of Living During the Marriage: The court aims to maintain the standard of living that the parties enjoyed during the marriage, insofar as possible. However, it's important to note that your standard of living will likely change after a divorce.
- Contributions to the Marriage: The contributions of each spouse to the marriage, both financial and non-financial, will be considered. This includes factors like childcare, homemaking, and career sacrifices.
- Clean Break Principle: The court generally seeks to achieve a "clean break" between the parties, meaning that financial ties are severed as soon as possible. This may involve structuring maintenance payments to facilitate independence.
- Rehabilitative Maintenance: South African law favours rehabilitative maintenance, which aims to equip the dependent spouse with the means to become self-sufficient. This might involve temporary maintenance payments while the spouse pursues education or training.
- Lifelong Maintenance: In exceptional circumstances, lifelong maintenance may be awarded if the dependent spouse is unable to become self-sufficient due to factors like age, disability, or long-term care needs.
- Redistribution of Assets: The court may consider any redistribution of assets between the parties, as this can affect the financial needs and resources of each spouse.
To claim spousal maintenance, you must include it as part of your divorce case. You cannot claim for spousal maintenance after the divorce has been finalised.
Remember that spousal maintenance is not guaranteed. If you're employed and financially independent, you may not qualify.