There are different types of maintenance in South Africa: spousal maintenance, interim maintenance, and child maintenance.
Spousal maintenance
Following divorce, a financially dependent spouse may be entitled to spousal maintenance. Depending on the age of the spouse seeking maintenance, their earning capacity, the duration of the marriage, and other factors, spousal maintenance may be permanent or “rehabilitative”. Rehabilitative maintenance allows the recipient time to retrain or bring existing skills up to date and eventually achieve financial independence from the former spouse. Or it may be granted until minor children reach the age of majority, when it i assumed the spouse (usually a woman who has been a full-time carer of young children) can re-enter the workforce. To ensure a fair maintenance order, both parties are obliged to provide the court with proof of their expenses.
A maintenance award may be granted regardless of who initiated the divorce action.
Interim maintenance (Rule 43)
A Rule 43 order 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.
Child maintenance
Under South African law children have the right to receive financial maintenance. Both parents are required to provide financial support for a child. The duty to maintain a child is not linked to marriage. The marital status at the time of birth or at any subsequent time has no impact on the responsibility to financially support a child.
Maintenance amounts are negotiated and finalised according to the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005. According to legislation, parents are obliged to pay for their children’s upbringing. However, their respective payments depend on how much each parent earns. Therefore, the split may not be 50/50. Consequently, the amount of maintenance paid to the primary caregiver is a calculation based on the monthly earnings of each parent and the cost of the child’s education, care and upbringing.
Maintenance orders are orders of the court. Failure to meet their obligations is a criminal offence.