Divorce and Family Law

 

 


 

Yes, maintenance orders can be varied if there is a material change in circumstances for either party (e.g., significant change in income, health, or the needs of the child).  An application must be made to the Maintenance Court to vary an existing order.

Yes, child maintenance can include contributions towards private school fees and reasonable extracurricular activities if these are deemed to be in the child's best interest and affordable by the parents, considering their financial means and the child's accustomed standard of living.

Spousal maintenance is typically addressed as part of the divorce proceedings. You would claim for spousal maintenance as part of your divorce summons or pleadings.  You may also apply for interim maintenance while the divorce is pending. Aucamp Attorneys can guide you through this process within your divorce action.

No. Spousal maintenance is not automatic. It is considered on a case-by-case basis based on the needs of one spouse and the ability of the other spouse to pay.  It is more likely to be awarded if one spouse was financially dependent during the marriage.

Maintenance covers a broad range of "reasonable needs" including:

  • For Children: Essential daily needs (food, clothing, housing, utilities), education (school fees, uniforms, extracurriculars, potentially tertiary), healthcare (medical, dental, optical, therapeutic), caregiving costs (childcare, after-school care), and a reasonable standard of living (transport, recreation, communication).
  • For Spouses: Basic living expenses (housing, food, utilities), personal needs (clothing, personal care, medical, transport), and sometimes rehabilitation costs (education/training for self-sufficiency).
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Maintenance 

In South African law, "maintenance" refers to the legal obligation of one person, usually a parent or spouse, to provide financial support to another person who is unable to support themselves, encompassing necessities like food, clothing, housing, education, and medical care, with the primary goal of ensuring the well-being of dependents; essentially, it is the "duty to support" someone financially

Understanding Maintenance in South African Family Law - Child and Spousal Support - Expert Guidance from Aucamp Attorneys

Child Maintenance Prioritizing the Needs of Children

South African law unequivocally prioritizes the well-being of children.  Child maintenance is considered the inherent right of the child, and both parents bear a legal obligation to contribute financially to their upbringing, regardless of their marital status.  Child maintenance is designed to cover a wide spectrum of a child's reasonable needs, ensuring their healthy development and overall well-being.  These needs encompass, but are not limited to:

  1. Essential Daily Needs Covers necessities such as nutritious food, appropriate clothing (including school uniforms), stable housing (rent/bond, utilities), and essential household upkeep.
  2. Educational Expenses Includes all aspects of education: school fees (public or private), uniforms, stationery, resources, reasonable extracurricular activities, school trips, and potentially tertiary education.
  3. Healthcare Requirements Covers comprehensive healthcare access: medical aid contributions, doctor's visits, hospital costs, medication, dental and optical care, and justified therapeutic or psychological care.
  4. Caregiving and Support Addresses childcare costs like creche/daycare fees, and in justified cases, nanny/au pair contributions, and after-school care expenses.
  5. Maintaining a Reasonable Standard of Living Extends beyond basics to ensure a fulfilling childhood, including transport for school and activities, age-appropriate entertainment, communication costs (when justified), and pocket money for older children.

Important Considerations for Child Maintenance  South African courts apply a "reasonable needs" standard, evaluating what is appropriate based on the child's specific needs, the financial capabilities of both parents, and the standard of living the child was accustomed to prior to any family restructuring. The court will always assess the income and earning potential of both parents to ensure a fair and proportionate contribution from each. Crucially, child maintenance is not limited to bare necessities; it is designed to support a child's holistic well-being and developmental needs, adapting as the child grows and their needs evolve.

Spousal Maintenance (Divorce Maintenance) Supporting Financial Transition

Spousal maintenance, also termed divorce maintenance, is a distinct form of support considered during divorce proceedings.  It is not an automatic entitlement, but rather evaluated carefully by South African courts based on the demonstrated needs of one spouse and the financial capacity of the other. Spousal maintenance primarily aims to assist a spouse who finds themselves unable to adequately support themselves after a divorce, especially when financial dependency existed during the marriage.  The types of expenses spousal maintenance may address include:

Basic Living Expenses Covering essential needs such as suitable accommodation or housing costs, ensuring access to food and groceries, contributions towards utilities, and general household running costs.
Personal Needs Providing for reasonable clothing allowances, personal care products, essential toiletries, healthcare expenses (like medical aid contributions), and transportation costs for daily living.
Support for Rehabilitation and Self-Sufficiency Recognizing that divorce can necessitate significant life changes, spousal maintenance can extend to educational or training expenses. This is particularly relevant in rehabilitative maintenance, aiming to equip a spouse with skills for self-support. It may also include job-seeking expenses to aid in re-entering the workforce.

South African law recognizes different forms of spousal maintenance, tailored to diverse circumstances

  1. Token Maintenance A minimal, symbolic amount acknowledging the marriage, without substantial immediate support. It allows for future adjustments if circumstances drastically worsen for the recipient.
  2. Interim Maintenance Temporary support during divorce proceedings to cover a dependent spouse's basic needs (housing, food, utilities) until a final order is in place. Requires a specific court application.
  3. Rehabilitative Maintenance Short-term support to help a spouse become self-sufficient, often covering education or training costs. It ceases when the recipient is deemed capable of financial independence.
  4. Permanent/Lifelong Maintenance Less common, for spouses unlikely to become self-supporting (due to age, health, etc.), especially after long marriages. It continues until death, remarriage, or court order, and can be reviewed.

Important Considerations for Spousal Maintenance: Spousal maintenance is not automatically granted and requires demonstrable need and capacity to pay. Courts generally favor promoting self-sufficiency for both parties post-divorce, often utilizing rehabilitative maintenance to achieve this "clean break" where fair and possible. Each case is meticulously assessed based on its individual circumstances, reflecting the unique dynamics of each marriage and its dissolution.

Seeking Expert Legal Counsel is Essential

Navigating maintenance claims, whether for children or spouses, is a complex undertaking with significant financial and personal implications.  Determining what can be legally claimed, the appropriate amount, and the duration of maintenance requires a thorough understanding of South African family law and careful consideration of individual circumstances.  Aucamp Attorneys strongly advises seeking expert legal counsel to fully understand your rights and obligations, whether you are seeking maintenance or are being asked to provide it. We are here to provide comprehensive legal assistance, from navigating the initial processes to gathering essential financial documentation, and representing your best interests in negotiations or court proceedings to ensure a just and equitable outcome. Contact Aucamp Attorneys for a consulation.