Spousal Maintenance
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The four kinds of spousal maintenance

Courts do not simply pick an amount. They pick a shape. Understanding which shape fits your circumstances matters more than any single number.

1. Nominal maintenance

A token amount - historically as little as R1 a month. It sounds pointless, and it is not. A nominal order keeps the door open: because an existing order can be varied, but a claim that was dismissed generally cannot be revived. A spouse who expects their circumstances to worsen may ask for nominal maintenance to preserve the right to come back to court.

2. Rehabilitative maintenance

Paid for a defined period - commonly two to five years - to let a spouse retrain, finish a qualification, or re-establish themselves in work. This is the most common form of spousal maintenance ordered in South Africa today, and it reflects the courts' general expectation that an adult who can become self-supporting should.

3. Permanent maintenance

Ordered where self-support is not a realistic prospect: a long marriage, an older spouse, a career given up decades ago, or ill health. It is less common than people fear, and it is not truly permanent - it ends on death or the recipient's remarriage, and it can be varied if circumstances change.

4. A lump sum

Instead of a monthly payment, a single capital amount. Attractive where the parties want a clean break and the payer has the assets to fund it. Once paid, there is nothing to vary later - which is either the appeal or the risk, depending on which side you are on.

Interim maintenance while the divorce runs

Divorces take time. Rule 43 of the Uniform Rules of Court exists so that a financially dependent spouse is not starved into settling on bad terms while they wait.

Under Rule 43 you can ask the court, on an urgent and relatively inexpensive basis, for:

• Interim maintenance for yourself and the children
• A contribution towards your legal costs
• Interim care of, and contact with, the children

A Rule 43 application stands or falls on a founding affidavit that sets out your monthly expenses in detail. Vague figures get vague orders. Work your figures out with the free Rule 43 budget template, or let MMaintenance generate a Rule 43 founding affidavit with your itemised schedule already built in - start a free schedule and export it when you are ready.

What the calculator above is doing

Two numbers decide most spousal maintenance arguments, and the calculator isolates both.

The shortfall is what you reasonably need each month, less what you earn yourself. It is the outer limit of what you could sensibly ask for. Note the word reasonably - measured against the standard of living during the marriage, not against what you would like.

The capacity is what your spouse earns, less what they reasonably need to live on. It is the outer limit of what they can actually pay. A court will not order a payer into destitution to fund a claimant.

The realistic ceiling is the lower of those two. Where capacity falls short of the shortfall - which is common, because two households cost more than one - the deficit is shared, and both parties leave the marriage poorer. That is not a failure of the calculation. It is the arithmetic of divorce.

Where child maintenance fits

Child maintenance is a separate claim, and it is calculated differently - South African courts apportion the children's costs using a portions method (two portions per adult, one per child) and then split that share between the parents in proportion to their incomes.

Work that out on the income split calculator, or build the full itemised version with the child maintenance Excel template. Keep the two claims separate in your papers: a court will.

A worked example

Thandi and Pieter were married for 14 years. Thandi left her job as a bookkeeper when their first child was born and has worked part-time for the last three years, earning R 9,000 a month after tax. Pieter is a manager earning R 62,000 a month after tax.

• Thandi's reasonable needs: R 24,000 a month for her own share of housing, food, transport, medical aid and personal costs (the children's costs are claimed separately as child maintenance). Her shortfall is R 24,000 - R 9,000 = R 15,000.
• Pieter's reasonable needs: R 30,000 a month, plus the R 12,000 he will pay in child maintenance. His capacity is R 62,000 - R 42,000 = R 20,000.
• The ceiling is the lower of the two: R 15,000 a month.

A court would then ask about shape. Thandi is 41 with a bookkeeping qualification and recent work experience, so a full-time return to work is realistic. A likely outcome is rehabilitative maintenance: perhaps close to the ceiling for the first year or two, stepping down over three to five years as her income rises. Had she been 58 with no work history since the wedding, the same numbers might support maintenance until death or remarriage instead.

The example is illustrative only. Real outcomes turn on evidence, and both parties' stated "needs" will be tested against the standard of living during the marriage.

Working out your reasonable needs

Your needs figure is where most claims are won or lost. A credible one is itemised, consistent with the lifestyle during the marriage, and supported by bank statements and invoices. Build it line by line:

• Housing: bond or rent, levies, rates, water and electricity, insurance, security
• Day-to-day living: groceries, toiletries, domestic help, cellphone and internet
• Transport: vehicle instalment, insurance, fuel, maintenance, licence
• Health: medical aid, out-of-pocket medical costs, medication
• Personal and future: clothing, retirement savings, life cover, reasonable recreation
• Retraining: course fees and study costs, if you are asking for rehabilitative maintenance

Where you share a home with your children, shared costs like rent and groceries must be split between you and them, or they will be counted twice across your spousal and child maintenance claims. The usual method counts each adult as two portions and each child as one. The Rule 43 budget template does this split automatically.

Customary, Muslim and unmarried relationships

The Divorce Act applies to civil marriages and civil unions, and to customary marriages recognised under the Recognition of Customary Marriages Act, so spouses in those marriages can claim spousal maintenance on divorce in the same way. Following the Constitutional Court's 2022 judgment in Women's Legal Centre Trust v President of the RSA, spouses in Muslim marriages can also rely on the Divorce Act's maintenance provisions while Parliament legislates.

Unmarried partners are different. South African law creates no duty of support between cohabiting partners, however long the relationship, so there is no spousal maintenance claim unless the partners agreed to one in writing. The duty to support children is unaffected: both parents must maintain their children whether or not they were ever married.

After the death of a spouse

A spouse whose marriage ends by death rather than divorce is not left without a claim. The Maintenance of Surviving Spouses Act 27 of 1990 allows the survivor to claim reasonable maintenance from the deceased's estate until their own death or remarriage, to the extent that they cannot provide for themselves from their own means and earnings.

Common questions

How much spousal maintenance will I get?

There is no fixed amount. The realistic ceiling is the lower of your shortfall and your spouse's capacity to pay, as in the worked example above. Within that ceiling the court decides the amount and the shape using the section 7(2) factors.

Can the order be changed later?

Yes. Section 8 of the Divorce Act allows a court to rescind, suspend or vary a maintenance order where there is sufficient reason, usually a material change in either party's circumstances.

Am I automatically entitled to spousal maintenance?

No. There is no automatic right. A court generally expects a spouse who can support themselves to do so. Maintenance is most often awarded where the marriage itself reduced your earning capacity - you left work to raise children, or moved cities for your spouse's career.

Does adultery affect maintenance?

Conduct is a listed factor, but South African courts have moved firmly away from using maintenance as punishment. Misconduct rarely swings an award unless it is gross and directly relevant to the financial position of the parties.

What if my spouse hides income?

Courts assess earning capacity, not merely declared earnings. A payer who resigns, understates a business's takings, or lives visibly beyond their stated income can be assessed on what they are capable of earning. Bank statements are the usual battleground.

Is spousal maintenance taxable?

Under current South African law, maintenance received under a divorce order is generally not taxable in the recipient's hands, and the payer generally cannot deduct it. Tax treatment turns on the specific structure of the order - confirm your position with a tax practitioner before relying on it.

When does it end?

Ordinarily on the death of either party, or on the recipient's remarriage. A fixed-term order ends when the term expires. Whether cohabitation short of remarriage terminates an order is contested and depends on how the order is worded - a point worth getting right at settlement rather than litigating later.