In the aftermath of a divorce, ensuring financial stability can become a major concern, especially for those who have been financially dependent on their spouses. Fortunately, the law provides mechanisms for financial support through spousal and child maintenance. Often providing some much-needed assistance to individuals during a challenging time. As is often the case, there are some intricacies around spousal and child maintenance, and South African courts consider various factors when determining spousal and child maintenance.


Spousal Maintenance: A Pathway to Financial Independence

Spousal maintenance, often referred to as "alimony" in other jurisdictions, is a financial support mechanism for a former spouse following a divorce. In South Africa, the Maintenance of Surviving Spouses Act 27 of 1990 and the Divorce Act 70 of 1979 govern spousal maintenance. The primary objective is to mitigate the financial disparity experienced by the spouse who earns less or has no income. Ensuring they can maintain a standard of living reasonably comparable to that enjoyed during the marriage.


Factors Influencing Spousal Maintenance Decisions

The determination of spousal maintenance is not based on a fixed formula. Instead, the courts consider several factors to arrive at a fair decision. These include:

  • Each party's current and foreseeable financial needs and resources: This includes their earnings, benefits and assets.

  • Parties' respective earning capacities: The court assesses the ability of each party to earn an income, including the impact that the marriage might have had on career progression.

  • Age and health of the parties: Older individuals or those with health issues may receive more favourable maintenance considerations, as this could have an impact on their earning capacity.

  • Duration of the marriage: Longer marriages may lead to more significant maintenance orders, reflecting the extended period of financial interdependence.

  • Standard of living during the marriage: The aim is to ensure that neither party experiences a drastic change in their standard of living post-divorce.


It is important to note that spousal maintenance is not automatically granted. The requesting party must demonstrate a legitimate need for financial support. The court will also assess the ability of the other party to provide this support.


Child Maintenance: Ensuring Children's Well-being

Child maintenance is a legal obligation, underscoring the responsibility of both parents to financially support their child's upbringing, even after separation or divorce. The Children's Act 38 of 2005 and the Maintenance Act 99 of 1998 outline the framework for child maintenance. These statutes emphasize the necessity for both parents to contribute towards their child’s living expenses, education, healthcare and overall well-being.  Fostering a stable and nurturing environment for their growth and development. 

The principle of the child's best interests is the cornerstone of all decisions related to child maintenance. This approach takes into account the child's physical, emotional and educational needs, seeking to minimise the disruptive impact divorce might have on their life. It ensures that despite the changes in the family structure, the child continues to benefit from a level of care and support that closely mirrors the standard they would have experienced previously.


How is Child Maintenance Calculated?

Unlike spousal maintenance, the determination of child maintenance takes into account the needs of the child and the parent's ability to meet those needs. Key considerations include:

  • The child's reasonable needs: This encompasses education, healthcare, housing, clothing and general welfare.

  • Each parent's income and financial situation: The court examines both parents' finances to ensure that maintenance contributions are proportionate to their means.

  • The child's standard of living before the divorce: Efforts are made to maintain consistency in the child's life and minimize the impact of the divorce.


The Maintenance Court plays a crucial role in child maintenance proceedings, facilitating negotiations between parents and enforcing maintenance orders. Parents can also seek adjustments to maintenance payments if there are significant changes in financial circumstances or the needs of the child.

Navigating the complexities of financial maintenance post-divorce requires a thorough understanding of South African law. Contact Cawood Attorneys today to consult with a legal professional experienced in family law. We will provide guidance and support throughout the process, ensuring your needs are clearly understood and effectively managed.

Get Your FREE Telephonic ConsultationContact Us