Section 14 of the Divorce Act 70 of 1979 deals with the duty to maintain a former spouse after a divorce. The section gives the court the power to order one party to pay spousal maintenance to the other, and to set the amount, the duration, and the conditions of the maintenance. The court weighs the parties’ direct and indirect contributions to the marriage, the parties’ existing or future earning capacity, and the parties’ other obligations.
This page explains section 14 of the Divorce Act, the factors the court weighs, and the practical steps to apply for spousal maintenance. If you need help with a divorce settlement, our Sandton-based Family Law team can assist.
What section 14 says
Section 14 of the Divorce Act 70 of 1979 gives the court the power to order one party to pay spousal maintenance to the other after a divorce. The section reads as a discretion, not a fixed rule, and the court can set the amount, the duration, and the conditions of the maintenance based on the facts of the matter.
The section has been interpreted by the courts over the years, and the modern approach is to weigh the parties’ direct and indirect contributions to the marriage, the parties’ existing or future earning capacity, and the parties’ other obligations.
What the court weighs
The court weighs the parties’ direct and indirect contributions to the marriage, the parties’ existing or future earning capacity, and the parties’ other obligations. The most common factors the court weighs are listed below in the order they usually appear in the section 14 application.
- The parties’ direct contributions, including financial contributions, homemaking, and childcare.
- The parties’ indirect contributions, including the support of the other party’s career or education.
- The parties’ existing or future earning capacity, including the ability to work more than they currently do.
- The parties’ other obligations, including any other children or dependents.
- The duration of the marriage, which usually goes up with the length of the marriage.
How the court sets the amount
The court sets the amount based on the parties’ income, the parties’ needs, the parties’ other obligations, and the parties’ existing or future earning capacity. The maintenance is calibrated to the actual facts of the matter, and there is no statutory formula.
The maintenance can be a fixed amount, a percentage of income, or a combination of the two. The most common model is a fixed amount, with a review clause that allows the parties to apply for variation on a material change in circumstances.
How long the maintenance lasts
The maintenance usually lasts until the spouse remarries or cohabits, or until the court varies the order on a material change in circumstances. The maintenance can be a fixed term, where the maintenance ends after a specific number of years, or it can be open-ended, where the maintenance continues until the spouse remarries or cohabits.
The fixed-term maintenance is more common in shorter marriages, where the spouse is expected to become self-supporting. The open-ended maintenance is more common in longer marriages, where the spouse has been out of the workforce for many years.
Variation of the maintenance
The maintenance can be varied on a material change in circumstances. The most common reasons for a variation are listed below in the order they usually appear in practice.
- A change in income, including a job loss or a promotion.
- A change in the spouse’s needs, including a new partner or a new child.
- A change in the spouse’s earning capacity, including a new job or a return to work.
- A change in the children, including a child reaching 18 or a child needing less support.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Assuming spousal maintenance is a fixed percentage. The court looks at the actual facts, not a percentage.
- Skipping the spousal maintenance in the settlement. Spousal maintenance is a separate issue from the asset division, and the parties should consider them separately.
- Failing to vary the maintenance when circumstances change. The maintenance does not adjust automatically.
- Skipping the tax implications. The spousal maintenance is generally not taxable in the hands of the recipient, but the parties should seek tax advice.
- Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.
Frequently Asked Questions
What does Section 14 of the Divorce Act say in South Africa?
Section 14 of the Divorce Act 70 of 1979 gives the court the power to order one party to pay spousal maintenance to the other after a divorce. The section reads as a discretion, not a fixed rule, and the court can set the amount, the duration, and the conditions of the maintenance based on the facts of the matter.
What factors does the court weigh under Section 14?
The court weighs the parties’ direct and indirect contributions to the marriage, the parties’ existing or future earning capacity, and the parties’ other obligations. The most common factors are the parties’ income, the parties’ needs, the parties’ other obligations, and the duration of the marriage.
How long does spousal maintenance last under Section 14?
The maintenance usually lasts until the spouse remarries or cohabits, or until the court varies the order on a material change in circumstances. The maintenance can be a fixed term, where the maintenance ends after a specific number of years, or it can be open-ended.
Can a husband claim spousal maintenance under Section 14?
Yes. The court can order the wife to pay spousal maintenance to the husband where the facts of the matter justify it. The court treats the issue the same way regardless of gender, and the maintenance is calibrated to the parties’ income, the parties’ needs, and the parties’ other obligations.
Can spousal maintenance be varied?
Yes. The maintenance can be varied on a material change in circumstances, including a change in income, a change in the spouse’s needs, a change in the spouse’s earning capacity, or a change in the children. The court will weigh the actual facts of the matter and arrive at a new amount.
What happens if the paying party stops paying spousal maintenance under Section 14?
The receiving party can apply to the court for an order enforcing the maintenance. The court can issue a warrant of arrest, attach the paying party’s wages, or garnishee the paying party’s bank account. The receiving party should keep a record of every payment and every missed payment.
Is spousal maintenance under Section 14 taxable in South Africa?
Spousal maintenance is generally not taxable in the hands of the recipient, and the paying party cannot deduct it from their taxable income. The parties should seek tax advice before agreeing to the maintenance, since the tax implications depend on the specific facts of the matter.
Get help with your divorce settlement. If you need help with a divorce settlement, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about Section 14 of the Divorce Act in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Divorce Act 70 of 1979, which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article. Divorce laws in South Africa can be complex, often involving various legal nuances that are crucial for individuals navigating the process. Understanding the specific provisions within these laws is essential for making informed decisions. It is advisable to seek guidance from an experienced lawyer who specializes in family law to ensure that your rights are protected.