Marriage, reciprocal support and Spousal Maintenance



Who can claim spousal maintenance?

Any spouse to a civil union, whether husband, wife or a same-sex union, may claim spousal maintenance from the other party to the union. No spouse is automatically entitled to spousal maintenance. Spousal maintenance will only be awarded where there is a significantly big difference in the income and earning capacity of the respective spouses.

Although couples in a marriage relationship are equally entitled to seek maintenance awards against each other, in practice and for historical reasons the majority of cases involving such claims are brought by women. For this reason, the discussion in this article will refer to any spouse as the one seeking maintenance from the other spouse. One must keep in mind that no spouse is automatically entitled to spousal maintenance.

In what circumstances can spousal maintenance be claimed?

Spousal maintenance can be claimed in four instances: during the marriage; pending divorce; after divorce; and after the death of a deceased spouse (claimed against the deceased estate).

Spousal maintenance during the marriage relationship

During the marriage relationship, each spouse owes to the other spouse a reciprocal duty of support, provided that the spouse claiming maintenance is actually in need of it and that the other spouse can actually provide it. This support includes, but is not limited to, accommodation, clothing, food, medical services and other necessities. This duty to support is not the responsibility of one spouse only, but both spouses have the responsibility to support each other. For example, a husband has no income, while his wife earnings a lot of money. In this case, the husband is entitled to financial support from his wife, and the wife has an obligation to support him financially.

Spousal maintenance pending divorce

When a divorce is taking a long time to finalise, or when one spouse is a homemaker with no income, the law provides a mechanism for that spouse to claim interim financial support pending the divorce until such time as the divorce is finalised. This is possible in both the High Court and the Magistrates’ Court. The spouse seeking interim relief must prove a need to be supported, and that the other spouse can afford to pay the amount being sought. The spouses’ standard of living is a factor to be considered when deciding on the amount being sought.

Spousal maintenance after divorce

Our law favours the “clean break principle”, meaning that after divorce the parties should become economically independent of each other as soon as possible. In terms of the Divorce Act, however, the court does have a discretionary power to award spousal maintenance if necessary, or to make no award at all. Such an award could be based upon a settlement agreement between the parties. If there is no settlement agreement, then the court will take into consideration the following factors in exercising its discretion whether or not to award spousal maintenance:

  • The existing and prospective means of the spouses.
    This refers to the spouses’ financial resources, which includes income from employment or any other sources of income.
  • Their respective earning capacities.
    Where both spouses worked during the marriage or had any other source of income, their incomes must be taken into account to determine whether or not each party will be able to meet his/her own maintenance needs.
  • Financial needs and obligations.
    What is considered to be a need in one family may be considered a luxury in another. A distinction must further be made between the parties’ needs and wants / desires.
  • The age of each party and the duration of the marriage.
    Where a marriage is short-lived, it is easier for the spouses to cut all financial ties through the “clean break principle”. Where the marriage was long and one spouse was the homemaker, the court will look at the duration of the marriage and the fact that the spouse had not worked for most of the marriage and was not working at the time of the divorce when deciding whether or not to award spousal maintenance.
  • The standard of living of the spouses prior to the divorce.
    The standard of living of the parties plays an important role when the court decides on the amount of maintenance that will be payable. The court will also look at any other factor which in its opinion should be taken into account in order to determine whether it should award spousal maintenance or not.

Spousal maintenance against the estate of the deceased spouse

The spouse in a civil union that has been dissolved by death has a claim for maintenance against the estate of the deceased spouse in terms of the Maintenance of Surviving Spouses Act. In the determination of the reasonable maintenance needs of the surviving spouse, the following factors are taken into account in addition to any other factors the court deems fit:

  • The amount of funds in the estate of the deceased spouse that are available for distribution to heirs and legatees;
  • The existing and expected means, earning capacity and financial needs of the surviving spouse; and
  • The standard of living of the surviving spouse during the subsistence of the marriage; and
  • The surviving spouse’s age upon the death of the deceased spouse. The surviving spouse’s claim for maintenance will have to be considered alongside all other claims against the estate of the deceased spouse.
  • Ndumiso Khumalo is a Candidate Attorney at the Rhodes University Law Clinic.
Rhodes University Law Clinic helping you

The Rhodes University Law Clinic strives to improve access to justice through the provision of free legal services to indigent people in most areas of law. In addition to its New Street offices, Law Clinic staff are available to clients at the Assumption Development Centre (Konongendi), Nceme Street, Joza, on the first and third Thursday of every month from 9am-12pm.

Law Clinic staff also conduct a talk show on Radio Grahamstown on the second and fourth Friday of every month, and provide workshops on a wide range of topics in order to raise awareness of people’s rights. For more detail, please contact the Rhodes Law Clinic:
Rhodes University Law Clinic
41 New Street, Grahamstown
Telephone 046 603 7656

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