Divorce and Maintenance Agreements in South Africa

In South Africa, maintenance for a spouse and/or children is awarded when certain conditions are met. Read more about these conditions below as well as the most important facts regarding child and spousal maintenance.

How maintenance is awarded in divorce cases in South Africa

One spouse may be required to provide ongoing financial support to the other, post-divorce. This happens when:

  • Both spouses have agreed to a maintenance plan
  • The court finds that there is just cause to grant maintenance to a spouse based on factors such as financial dependence or child-rearing expenses

In an uncontested divorce or DIY divorce, a court’s deliberation for scheduling maintenance isn’t needed. If the maintenance part of a divorce agreement is contested, however, the court will come to a decision, taking into account:

  • The means (financial position) of each party
  • The age (and earning capability) of each party
  • The duration of the marriage
  • Both parties’ standards of living prior to the divorce and what impact the divorce will have on this
  • Conduct of either party that may be relevant to the breakdown of the marriage
  • The needs of dependents such as children who are minors
  • Maintenance is awarded on a discretionary basis, meaning that there is no guarantee it will be awarded: The onus is on the party claiming maintenance to prove their financial need.

Spousal Maintenance in South Africa

To determine whether a spouse should receive maintenance post-divorce, the court will decide whether the spouse seeking maintenance is able to support themselves financially or not. Besides earning capacity, the court also considers the financial duties and needs of both parties. If a spouse has devoted the duration of the marriage to child-raising and other spousal duties, it is more likely they will be granted maintenance.

Child Maintenance in South Africa

In South African law, the obligation lies on both parents to be responsible for child support, depending on the means of each. A parent can only claim maintenance on a child’s behalf until they are 18, after which the child must apply for maintenance on his or her own behalf. A parent’s duty is not altered if they should remarry.

It is important to note that child maintenance is not fixed: Either party can apply for an increase or reduction in maintenance if financial circumstances change. If a parent has no income but has assets, these must be liquidated to meet the requirements of the maintenance agreement.

Facts about maintenance:

Largely discretionary, the court weighs such things as the financial means of both parties, living standards of both prior to the marriage vs after, what other means both parties will have, whether or not the possible support receiver is supported by another,

Maintenance claims can only be determined after the division of assets since this brings to light what prospective means a party has.

Considerations the court will take into account:

  • Best interests of the spouses’ children
  • Childcare responsibilities of the dependent spouse
  • The high rate of inflation
  • The way in which each conveyed their financial position

See related resource: How to calculate child maintenance.