Strings Attached on Both Ends Still – Spousal & Child Maintenance

Maintenance flows directly from the legal duty of support upon any party or entity that the law recognises as having such a duty. It can be a biological or adoptive parent towards their child, spouses towards each other, or even a deceased estate towards a surviving spouse. Such legal duty is enforceable by law and it is one that the Courts take with serious recognition.

In this article we will discuss the dynamics around spousal and child maintenance in South Africa as we receive quite a number of queries in this respect.

Spousal Maintenance

Spousal maintenance is a claim for financial support after the dissolution of a marriage. The point of departure however, is that no former spouse has an automatic right to spousal support after the dissolution of a marriage and therefore the Courts have to be convinced by the claimant on why spousal support should be granted under the circumstances. In the case of EH vSH 2012 (4) SA 164 (SCA) it was held that a person claiming maintenance must establish the need to be maintained by the other party before the Court can make such an Order.

The ‘clean break principle’ introduced by Section 37D (4) of the Pension Funds Act 24 of 1956 (as amended) sought to ensure that former spouses are financially independent of each other as soon as possible after the termination of a marriage, and therefore spousal maintenance should not be seen to impede on that realisation.

The Divorce Act 70 of 1979 contains provisions in Section 7 (1) and (2) that deal with spousal maintenance. It is noteworthy that the wording in 7 (1) includes the word ‘may’ which establishes that the Court have a discretion on whether to grant spousal maintenance or not. This is unlike child maintenance, whereby a child has an automatic right to receive support and maintenance from their biological or adoptive parents, or even anyone else whom the law recognises as having that duty e.g grandparent.

Upon a soon-to-be former spouse claiming spousal maintenance, Section 7 (2) provides the factors that the Courts look at in determining such a claim;

1.    Financial means of the parties;

2.    The earning capacity;

3.    Financial obligations of each spouse;

4.    The needs and age of both spouses;

5.    The duration of the marriage;

6.    The spouses’ standard of living prior to the divorce;

7.    Their conduct relating to the breakdown of the marriage;

8.   Any other factor that the Court may deem relevant in determining whether such an order ought to be made.

Child Maintenance

On the other hand child maintenance is provided for under the Maintenance Act of 1998, stemming from the obligations and aspirations of the Children’s Act 38 of 2005 and the Constitution of the Republic of South Africa Act 108 of 1996. At the Magistrate’s Courts there are MaintenanceCourts which deal with child maintenance applications and adjudication. One has to approach the Clerk of the Maintenance Court and they will assist to open a file, send Summons to the Respondent, facilitate mediation, or send the matter for a formal inquiry before the Court.

Unlike spousal maintenance, child maintenance is automatic between the biological or adoptive parents and the child.

Conclusion

We must however categorically mention that maintenance is not as straight forward as it might appear in this article; we have simplified it so that people may be able to understand the dynamics around it. There are extensive technical and legal factors that must be put in place when applicants file maintenance lawsuits, or even defending one. We advise applicants or Respondents to seek legal assistance so that their claims or defences are intact.

Our astute Family Law Department lawyers have extensive experience, are committed and professional in their work. Contact us for comprehensive assistance.