Unlike child maintenance, spousal maintenance after divorce is not automatic. A spouse has no general right to be supported by the other once the marriage ends. But where one spouse cannot support themselves, often because they gave up or limited a career to run the household or raise children, the court may order the other spouse to pay maintenance.
The legal basis
Under section 7(1) of the Divorce Act 70 of 1979, the court may make an order in accordance with a written agreement between the parties about maintenance. Where there is no agreement, section 7(2) allows the court to order maintenance, having regard to:
- the existing or prospective means of each party;
- their respective earning capacities;
- their financial needs and obligations;
- the age of each party;
- the duration of the marriage;
- the standard of living of the parties before the divorce;
- their conduct, insofar as it may be relevant to the breakdown of the marriage;
- any redistribution order made under section 7(3); and
- any other factor that the court considers relevant.
The court may order maintenance until the death or remarriage of the recipient, whichever occurs first, or for a shorter period.
Rehabilitative maintenance
Courts increasingly favour rehabilitative maintenance, which is paid for a limited period to give the recipient spouse time to retrain, re-enter the job market or become self-supporting. The amount and duration depend on how realistic it is for the spouse to become independent. A spouse in their thirties with qualifications and recent work experience is likely to receive maintenance for a shorter period than one who has been out of the workforce for twenty years.
Lifelong maintenance
Maintenance until death or remarriage is still ordered, typically where:
- the marriage was long;
- the recipient is older, or has health limitations, and has little realistic prospect of becoming self-supporting; and
- the recipient’s lack of earning capacity results from the roles the spouses adopted during the marriage.
The clean-break principle
Courts recognise the value of a “clean break” between former spouses, where possible. Where there are sufficient assets, a larger share of the assets, for example through an accrual or redistribution claim, may reduce or replace the need for ongoing maintenance. Lump-sum maintenance settlements are also common, as they give both parties certainty.
Proving the claim
A spouse claiming maintenance must prove their reasonable needs, usually through a detailed monthly budget supported by bank statements, invoices and evidence of the family’s standard of living. The paying spouse must make full financial disclosure. Claims that are inflated, or disclosure that is incomplete, damage credibility. Expert evidence from industrial psychologists or career experts may be used to assess earning capacity.
While the divorce is pending, interim maintenance can be claimed under Rule 43.
Changing the order
Under section 8 of the Divorce Act, a court may rescind, vary or suspend a maintenance order if there is sufficient reason, such as a material change in either party’s circumstances, for example retrenchment, illness, retirement or a significant increase in the recipient’s income. Maintenance orders made in a divorce may also be varied in the Maintenance Court under the Maintenance Act 99 of 1998.
A settlement agreement may restrict variation, and the precise wording matters. Many disputes arise because the agreement is unclear on escalation, the effect of cohabitation by the recipient, or retirement of the payer.
Cohabitation and remarriage
Maintenance ends automatically on the recipient’s remarriage, unless the order provides otherwise. Cohabitation with a new partner does not automatically end maintenance, but a settlement agreement may provide that it does. It may also be a sufficient reason to vary the order. Clear drafting is essential.
Enforcement
If the paying spouse falls into arrears, the recipient can enforce the order through the Maintenance Court, which can order the attachment of salary, attach debts or issue a warrant of execution against property. Wilful failure to pay maintenance is a criminal offence. See our article on enforcing maintenance.
Practical tips
- Plan your career and finances before the divorce is finalised. Maintenance is harder to obtain or increase later.
- Draft settlement agreements carefully, dealing with escalation, cohabitation, retirement and medical aid.
- Secure the payment, for example through a life insurance policy that pays out if the payer dies.
- Consider tax. Maintenance is generally not taxable in the recipient’s hands, and is not deductible by the payer.
How O’Reilly Law can help
We advise and represent spouses claiming or opposing maintenance, negotiate maintenance settlements and bring variation and enforcement applications. Contact us to discuss your situation.
Related reading: Getting divorced in South Africa · Rule 43 applications
This article is general information and not legal advice. Correct as at October 2026.