Calculating spousal maintenance

How is maintenance calculated on divorce in South Africa?

In South Africa, the Divorce Act 70 of 1979 makes provision for spousal maintenance to be paid at the discretion of the court. It is not an automatic right and can be a highly charged subject. Laws and practices vary around the world, but in general terms the days of a wife receiving maintenance – or “alimony” as it is called in the US – for life and bankrupting her ex-husband in the process are in the past.

Most countries, including South Africa, now take a gender-neutral approach to spousal maintenance, and a high-earning wife can be ordered to pay maintenance to her ex-husband, although it is still uncommon. It is the difference in income that matters, not the sex of the earners. How is maintenance calculated? Is there a formula the courts apply? Unfortunately, there is not. We say “unfortunately”, because it would make matters easier for divorcing couples and their lawyers if there were. But the lack of a legislated calculation ensures that every case is decided on its own merit, and prevents a pre-determined formula from unfairly discriminating against one party or the other.

Factors the court considers

As already indicated, there is no automatic right to spousal maintenance in the event of a divorce, and our courts have discretion to award spousal maintenance or not. When a judge decides whether to order maintenance payments after divorce, they begin by considering whether one spouse needs support and whether the other spouse has the ability to pay. The courts will take the following factors into account (outlined in section 7(2) of the Divorce Act) when awarding spousal maintenance:

• The parties’ existing and prospective means
• The parties’ respective earning capacities and financial needs and obligations
• The age of the spouse seeking maintenance
• The duration of the marriage
• The conduct of the other party insofar as it caused the breakdown of the marital relationship
• The parties’ standard of living
• Any other factor the court deems relevant

One factor the court won’t consider is who initiated the divorce action. A wife can file for divorce against her husband and still request spousal support. However, if, for example, a higher-earning wife has filed for divorce because of her husband’s infidelity or abusive behaviour, and he requests maintenance, his request may be denied on the basis of his conduct. The converse is also true: a wife who has been unfaithful or unreasonable and caused her husband extreme pain may be refused maintenance, even if he is the one to initiate the divorce. But cases like these are rare.

Rehabilitative maintenance

Spousal maintenance may be permanent, but more commonly it is rehabilitative. This allows a party, usually the wife, who devoted her time and energy to raising the children of the marriage, to retrain or bring existing skills up to speed after a career break, with a view to resuming full-time employment. Or the stated period might be until the children reach the age of majority, when it is assumed the woman can re-enter the workforce.

Proof of expenses

To enable the maintenance court to make a judgment and grant a fair maintenance order, both parties are obliged to provide the court with proof of their expenses. A judge may decide that the party with the duty of support could be earning more than they currently are. This may mean, for example, if they are working part-time they will be expected to look for a full-time job.

It’s important to make the distinction between the duty of parents to support their children and spousal maintenance. The two are unrelated. Furthermore, the right of a parent to have access to their child(ren) is not contingent on paying maintenance for the child, and vice versa. Both parents have a responsibility to support the financial needs of their children according to their respective means. When it comes to calculating child support or maintenance, a child’s portion of shared expenses is deemed to be half that of an adult. A rule of thumb for determining child support is:

(Parent’s gross income)                                                    (Child’s needs)

______________________                     X                      ____________

(Total gross income of both parents)                                        1

However, as stated previously, there is no equivalent formula for calculating spousal maintenance. Remember that once a maintenance order has been made, and the divorce is finalised, it is usually not possible to amend the order post-divorce. So it’s wise to be open and honest about your finances, whether you are the one likely to pay or receive support. Hiding important details at this point may be a matter for regret at a later date.

Interim maintenance (Rule 43)

There is another type of spousal support – a Rule 43 order. This is an interim order designed to provide an immediate, temporary facility that will prevent potential financial hardship while waiting for a divorce to be finalised. A non-earning spouse may require interim maintenance when no longer in receipt of a joint household income. The lower- or non-earning spouse may also require financial assistance with legal costs, to ensure fair and equitable access to due process of law. (It may also be used to ensure custodial arrangements are suitable and children are not placed at risk.)

How is spousal maintenance calculated in South Africa?

Spousal maintenance in South Africa is not calculated by a fixed formula. A court looks at the facts of the marriage, the financial position of each spouse, and what would be just in the circumstances. This means two cases with similar incomes can still produce different outcomes, depending on the length of the marriage, earning capacity, financial needs, obligations, age, health, standard of living, and whether one spouse has become financially dependent during the marriage.

In practice, the starting point is usually a clear schedule of income and reasonable monthly expenses for both spouses. The court then considers whether one spouse has a genuine shortfall and whether the other spouse has the means to contribute. The result may be no maintenance, rehabilitative maintenance for a limited period, or maintenance for a longer period where the facts justify it.

Spousal maintenance is not automatic

A spouse does not receive maintenance simply because the parties are divorcing. The spouse claiming maintenance must show a need for support, and the other spouse’s ability to pay must also be considered. The court may also consider the duration of the marriage, the parties’ standard of living before divorce, their present and future earning capacities, and any other factor the court considers relevant.

This is why online maintenance calculators should be treated with caution. They may help organise the numbers, but they cannot predict what a court will order. A proper assessment requires financial disclosure, supporting documents, and a practical litigation or settlement strategy.

What information is needed to assess spousal maintenance?

Before advising on spousal maintenance, an attorney will usually need to consider:

• each spouse’s income, including salary, business income, rental income and investment income;
• each spouse’s reasonable monthly expenses;
• the duration of the marriage;
• the standard of living during the marriage;
• the age, health and earning capacity of each spouse;
• caregiving responsibilities, especially where one spouse has primary care of minor children;
• the parties’ assets, liabilities and access to capital;
• whether one spouse needs time to retrain, find work or become self-supporting;
• existing child maintenance obligations; and
• the likely cost and proportionality of litigating the issue.

Can spousal maintenance be changed later?

Spousal maintenance may sometimes be varied, reduced, suspended or terminated if there is a material change in circumstances. Examples may include a significant change in income, loss of employment, remarriage, retirement, serious illness, or a change in the financial needs of either spouse. Whether a variation is possible depends on the wording of the order or agreement and the facts of the case.

If maintenance is disputed, it is important to prepare the financial evidence properly. A vague claim for support is usually weaker than a clear, documented explanation of need, affordability and the practical reason for the amount claimed.

Frequently asked questions about spousal maintenance

Seek the advice of an excellent divorce lawyer for any maintenance concerns 

SD Law is a firm of experienced divorce attorneys based in Cape Town, with offices in Johannesburg and Durban. If you are considering divorce and want to discuss your options, including any potential entitlement to maintenance, call family lawyer Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Related reading

• Maintenance Court in South Africa: what parents need to know
• Child maintenance in South Africa
• Maintenance enforcement in South Africa
• Family-law maintenance advice from SD Law

Simon Dippenaar

Founder & Managing Partner, SD Law

Attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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