The amount you pay your wife after a divorce in South Africa, called spousal maintenance, is not a fixed percentage of your income. The court looks at 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 ends when the spouse remarries or cohabits, or when the court varies the order on a material change in circumstances.
This page explains how spousal maintenance is calculated, the factors the court weighs, and the practical steps to apply for spousal maintenance. If you need divorce assistance with a divorce settlement, our Sandton-based Family Law team can assist.
What spousal maintenance is
Spousal support payments refer to the monthly amount one party pays to the other to support them after the divorce. The maintenance is paid to the spouse, and ends when the spouse remarries or cohabits. The maintenance is also subject to variation on a material change in circumstances.
Spousal maintenance is different from child maintenance. According to spousal support guidelines, spousal maintenance is paid to the spouse and ends when the spouse remarries or cohabits. Child maintenance is paid for the benefit of the child, and continues until the child is self-supporting.
How the court calculates spousal maintenance
The court calculates spousal maintenance by looking at 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 most common factors the court weighs are listed below in the order they usually appear in the maintenance calculation.
- The parties’ income from employment, self-employment, or other sources.
- The parties’ needs, including housing, transport, and food.
- The parties’ other obligations, including any other children or dependents.
- The parties’ existing or future earning capacity, including the ability to work more than they currently do.
- The duration of the marriage, which usually goes up with the length of the marriage.
Reform versus maintenance
Reform and maintenance are two different things. Reform is the redistribution of the assets of the marriage, which is a once-off event. Maintenance is the ongoing payment from one party to the other, which continues until the spouse remarries or cohabits.
The court will weigh the reform and the maintenance together. A larger reform may support a smaller maintenance, and a smaller reform may support a larger maintenance. The two are not independent, and the parties should consider them together when negotiating the settlement.
How long spousal maintenance lasts
Spousal 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 spousal maintenance
The spousal 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
How much do you pay your wife after a divorce in South Africa?
Spousal maintenance is not a fixed percentage of your income. The court looks at 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.
How long does spousal maintenance last in South Africa?
Spousal 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.
Is spousal maintenance 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.
Can a husband claim spousal maintenance in South Africa?
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?
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.
How is spousal maintenance calculated in South Africa?
The court calculates spousal maintenance by looking at 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.
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 spousal maintenance in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law, including divorce legislation, is set out in the Divorce Act 70 of 1979 and the Income Tax Act 58 of 1962, both of which may be amended. Confirm the current position with the South African Revenue Service or speak to a family attorney before relying on anything in this article. The wife’s rights in South Africa are defined under various legal frameworks, ensuring protection and support during and after marriage. These rights encompass a range of issues, including property division and maintenance, which are crucial for achieving fairness in divorce proceedings. It is essential for individuals to understand these rights to navigate the complexities of family law effectively.