Can I claim maintenance for myself?
What is spousal maintenance?
Personal/spousal maintenance is the maintenance that is paid by one spouse (normally more financially secure) to his/her (soon-to-be) ex-spouse during and/or following a divorce.
Am I entitled to spousal maintenance?
Negative. Neither spouse has a right to spousal maintenance upon divorce. If the parties cannot reach agreement in this respect, the residing Magistrate/Judge has discretion to make a ruling in respect of spousal maintenance if he/she believes that it will be fair given the circumstances. South African divorce law favours the „clean break‟ principle, which essentially means that after a divorce the parties should become economically independent of each other as soon as possible without the ties of paying maintenance towards the other spouse.
Factors that influence spousal maintenance.
Courts are issued with a discretionary power to grant spousal maintenance (in the absence of a formal agreement between the parties). In such cases the courts looked at the following factors to decide:
- The duration of the marriage;
- Was the other spouse the sole breadwinner in the marriage and what are the prospects of the claimant spouse to get employment?
- Did the claimant spouse become used to a certain standard of living that s/he would be deprived of after the divorce?
- Age of the parties;
- The educational qualifications of the parties.
What is the difference between rehabilitative maintenance and lifelong maintenance?
Rehabilitative maintenance is for a specific, fixed period only. The fixed period cannot be shortened or extended. This is generally granted to those who require to a helping hand to get back on their feet financially after/during the divorce process. Permanent / lifelong maintenance is payable from date of divorce and on a monthly basis until such time when the receiver of the spousal maintenance declared deceased.
When does spousal maintenance stop?
This needs to be discussed in the divorce settlement agreement as to when the spousal maintenance obligation will halt/cease. This usually happens when:
- The other party remarries
- The other party lives together as husband, wife or life-partner with another person.
- Similar restrictive conditions may be added if both parties can agree on this.
Must my spouse continue to support me financially during the divorce process (pending divorce)?
Indeed. If your spouse maintained you financially during your marriage, he/she should continue doing so pending divorce litigation. Note: this is support DURING the divorce proceedings.
Would it be possible to change the spousal maintenance amount after divorce?
Unless there is a specific stipulation in the divorce order excluding this right, either of the parties may approach the Court post-divorce to request that the spousal maintenance responsibilities be amended or even pardoned. To be successful with such application, drastically changed financial circumstances will have to be proved via evidence such as bank statements, etc.
What should I do if my spouse stops supporting me during divorce and I am left without funds?
During a divorce it very often happens that your spouse will stop paying certain expenses. Or your spouse is spiteful and drags out the divorce proceedings. Our South African law allows you to apply to the divorce court for a court order for maintenance for your child(ren), maintenance for yourself (spousal maintenance), and a contribution towards your legal costs (if need be). The first step would be to confront and ask your spouse to make payment. If this fails, contact your divorce attorney. Your attorney will send a formal letter to your spouse directly or to your spouse’s attorney if he/she has legal representation. If this fails your divorce attorney will have to assist you with a Rule 43/58 Application. You will file an affidavit stating your financial circumstances and why you require financial assistance and your spouse will reply to your affidavit with his/her own affidavit. Thereafter, the case will be argued in front of a judge who will make an interim order that will in place until the divorce is finalised.
What is a Rule 43 or 58 Application?
Rule 43 deals with many of the issues that will ultimately be dealt with in the final divorce action. It is an interim measure (in other words it is only temporary) to give certainty to the parties before the divorce is finalised. Sometimes divorces can take a long time and it is necessary to clarify and stipulate certain issues between the parties. Rule 43 typically covers interim primary care of the minor children, and contact or visitation by the non-primary carer. Furthermore it can deal with maintenance for minor children and if necessary, for a spouse. It can be used to enforce payment of for instance, the bond of the matrimonial home and vehicles, school fees and medical aid premiums. A special application is necessary before the Court will grant such an order and you will need the assistance of an attorney. A Rule 43 application is heard by the High Court and all the provisions above is also done by the Regional Court, but then it is referred to as a Rule 58 Application.
What does the Rule 43 or 58 procedure entail?
This is normally quite straight-forward and a fast process that could possibly be completed in one to two months. The appointed divorce attorney will draft a Notice of Motion and Affidavit. The affidavit is provided to offer more information about the case and explain why an order for interim maintenance is necessary. After the issuing of the documents as well as serving of the application (on the Defendant’s attorneys), the Court will designate a court date for the Rule 43 / 58 hearing upon request.