Child and Spousal Divorce Maintenance

Understanding Child and Spousal Divorce Maintenance

Under Divorce Law in South Africa, two types of divorce maintenance issues might arise, namely instances of spousal or child maintenance. In this article, we unpack both types under South African law. The most popular type of divorce maintenance is the issue of child maintenance. The Children’s Act stipulates that parents or legal guardians of children are responsible for providing financial contributions to the cost of childcare. This includes covering all basic needs such as food, clothing, education, and medical costs.

In proceedings where children are involved, a court-appointed maintenance order will stipulate the monetary amount that must be paid each month. There is no specific set amount of money, and it is decided by the courts on a case by case basis. To arrange child support, applicants can go to the maintenance court – along with three months' worth of bank statements – and apply for a maintenance order.

Spousal maintenance is different from that of childcare support. It is a monetary amount paid to one party after the divorce. As a general norm, neither party is legally entitled to monetary support after the divorce under South African law. However, the court can decide to award it on a discretionary basis. Before doing so, they will consider various factors, including:

  • The respective earning capacity of both parties
  • The age of the parties
  • How long they have been married
  • The living standards before the divorce
  • Financial obligations and needs of each party
  • Any mitigating circumstances that lead to the breakdown of the marriage
  • While South African law prefers both parties to become economically independent after the divorce is finalised and such a proceeding is not the norm, a precedent was set in 1987 in the Grasso V Grasso case, whereby the court ruled the following:

    "middle-aged women who have for years devoted themselves full-time to the managing of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to enable them to be trained or retrained for a job or profession".

    In this instance, the court recognised the financial sacrifice of one of the parties and offered compensation after the divorce so that the party could get back on their feet financially and re-establish a career. This ruling acknowledged the many years that the party was unable to work in lieu of familial responsibility

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