Navigating Spousal Maintenance: What You Need To Know


Going through a divorce can be an emotionally charged and challenging time for anyone. In addition to the many legal aspects involved, one significant consideration is spousal maintenance. If you are going through a divorce, getting clued up on spousal maintenance and how you might apply for it is a good idea.

Spousal maintenance refers to the financial support provided by one spouse to the other after the dissolution of a marriage. There are three main types of spousal maintenance: temporary, rehabilitative, and permanent. The granting of spousal maintenance is subject to Section 7 of the Divorce Act, 70 of 1979.

To get a more comprehensive understanding of spousal maintenance, you should look at its relevant ins and outs, including types, eligibility, and court considerations. Whether you are in the middle of the divorce process or are looking into how a divorce might affect you knowing this information can help you in the long run.


What Is Spousal Maintenance?

Spousal maintenance, often referred to as spousal support or alimony, is a financial arrangement where one spouse provides support to the other spouse after divorce. Spousal maintenance ensures that both parties can maintain a similar quality of living to what they had during the marriage by balancing any financial inequalities that may arise due to the end of the marriage.

Spousal maintenance is different from child maintenance; a vital aspect to bear in mind is that no law states that spousal maintenance is a given. Although Section 7 of the Divorce Act, 70 of 1979, allows a court to grant this maintenance at its discretion should they feel it necessary to do so.


Different Types Of Spousal Maintenance

There are various types of spousal maintenance arrangements, which can vary depending on the circumstances of each case. The three main types include the following:

  • Temporary Maintenance: This type of maintenance is granted during the divorce proceedings and aims to provide immediate financial assistance to the spouse in need.
  • Rehabilitative Maintenance: Rehabilitative maintenance is awarded when a spouse requires financial support to gain the education, skills, or training necessary to become self-supporting after the dissolution of the marriage.
  • Permanent Maintenance: In some instances, the court may award permanent maintenance when a spouse cannot support themselves due to age, health issues, or other circumstances.


Interim Court Applications For Spousal Maintenance

During the divorce process, a spouse may need financial support before the finalization of the divorce. In such situations, you can make a Rule 58 application in the Regional Court or a Rule 43 application in the High Court.

These applications allow the court to provide temporary maintenance, child support, and other interim relief to ensure both parties’ well-being during the divorce proceedings.


Who Is Entitled To Spousal Maintenance?

Determining eligibility for spousal maintenance depends on various factors, including spouses’ financial needs and earning capacities. The court considers several factors, including the health of each spouse and the duration of the marriage, the age of the spouses, their respective financial resources, and the standard of living during the marriage.

One thing to remember is that spousal maintenance claims are not gender specific. This statement means that men and women can claim spousal maintenance if circumstances allow it. It is essential to consult with an attorney to evaluate your particular circumstances and assess your eligibility for spousal maintenance.


What Will the Courts Take Into Consideration?

When deciding on spousal maintenance, the court considers several factors, including:

  • The duration of the marriage;
  • The standard of living established during that time;
  • Each spouse’s age, physical and emotional health, and earning capacity;
  • The financial resources of each spouse, including income, assets, and debts;
  • Child custody arrangements;
  • Any potential tax consequences resulting from the maintenance award;
  • The behavior and actions of each spouse, insofar as they may have contributed to the breakdown of the marriage;
  • Any additional factor that the court deems relevant for consideration.


How Might Spousal Maintenance Be Ordered

You can get a spousal maintenance order through a settlement agreement between the divorcing spouses or a court order.

A settlement agreement is a voluntary agreement reached through negotiations. Typically, a settlement agreement is agreed upon and entered into before the divorce is finalized. Section 7(1) of the Divorce Act makes provision for the inclusion of a spousal maintenance order when granting a divorce decree.

A judge will issue a court order based on the evidence and arguments presented in court by the relevant parties. Section 7 (2) of the Divorce Act provides that in the absence of a settlement agreement, the court may find it just to make an order stipulating that one spouse should make a maintenance payment to the other.

The court will look at several aspects before deciding on the specifics of the court order, including how much spousal maintenance should be paid and how long it should be paid.

Both options have advantages and considerations, and it is crucial to consult a qualified attorney to determine the best approach for your situation. It is important to note that awarding spousal maintenance is purely at the courts’ discretion and is not an automatic right.


Recommended Maintenance Clauses

When including spousal maintenance clauses in a settlement agreement, it is essential to be clear and specific to avoid future disputes. Recommended maintenance clauses may cover the following:

  • Duration: Specify the length of time maintenance will be paid or state that it is open-ended.
  • Modification: Include provisions for modifying the maintenance amount or duration under certain circumstances.
  • Termination: Define the conditions under which maintenance will cease, such as remarriage or cohabitation.
  • Legal representation: Advise each spouse to consult with independent legal counsel before signing the agreement.


Spousal maintenance is an important consideration when going through a divorce. Understanding the different types of spousal maintenance, eligibility criteria, court considerations, and available options can help you navigate this aspect of your divorce proceedings.

Remember, seeking direction from experienced family law attorneys is essential to protect your rights and secure the best outcome for your spousal maintenance claim. Our Burnett Attorneys & Notaries team can ensure you stay informed and approach this challenging time with clarity and confidence. Please contact us if you have any queries or require help with a spousal maintenance claim.