Family law
  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Custody and Coronavirus
    • Relocation and Child Abduction >
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • Parental Alienation
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • Family Law Newsletter March 2017
    • September 2016 Family Law Newsletter
    • Family Law Newsletter 2017 1
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities

CONSULT OUR LAWYERS
ONLINE DURING
​COVID-19



ZOOM VIDEO CONFERENCING
WHATSAPP OR TELEPHONE


schedule a meeting
Picture

The Maintenance eBook

Click on the link below and download the maintenance eBook.
Download

Frequently asked questions

Click on the link below for questions and answers on maintenance
FAQ Maintenance

Calculate Maintenance

How do you calculate child maintenance, click the link below.
Learn more

Child and Spousal Maintenance


Child Maintenance
Child Maintenance

When it comes to maintenance, the law is fairly straightforward. It is in the application of the law that difficulties lie. One of the basic principles of child maintenance is that the extent of the obligation is based on the standard of living, income and means of the person/s obliged to pay. The obligation does not rest solely on the father; it rests on both parents, according to their respective means. The fact that the father can adequately support the child on his own does not mean that the mother can avoid contributing. In fact, it would be contrary to public policy and invalid to insert a clause into a divorce settlement agreement stating that only one parent need maintain the child.

Once a child has reached the age of 18, a parent cannot claim maintenance on their behalf. The child must institute action in his/her personal capacity. The fact that a child is visiting a parent temporarily does not entitle that parent to suspend or reduce his/her maintenance during that period, unless a court order contains a specific provision to the effect that this may happen.

A parent’s duty of support towards his/her child is not affected in any way by a remarriage and a step-parent is also under no obligation to support a stepchild. Similarly, a child from a first marriage does not have priority over a child from a second marriage when it comes to maintenance obligations. The refusal to allow a parent contact does not entitle that parent to stop paying maintenance.

When maintenance court makes an order regarding maintenance, such an order is not fixed forever. If circumstances change, an application for an increase or reduction in maintenance can be made.

In order to fulfil their obligations to support their child, parents must use both of their incomes and, if necessary, their capital. This means that if a father/mother has no income but has assets, he/she will not be able to avoid paying maintenance. A court may order that the assets be sold to satisfy the obligation to pay maintenance. This also prevents a parent from evading his/her duty to pay maintenance by giving up work and becoming, for example, a full-time student.

The ordinary rules relating to parents’ duty to support also apply in respect of children born out of wedlock.

Spousal maintenance

Although women and men are equally entitled to seek maintenance awards, in practice, for historical reasons, the majority of cases at present involving maintenance are brought by women. For this reason, the discussion that follows usually alludes to the woman as the one seeking maintenance. One day in the future, you will find that it could just as equally be the ex-husband seeking maintenance from his ex-wife. Neither spouse is automatically entitled to spousal maintenance on divorce. Our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible. The court, however, does have the discretionary power to award spousal maintenance if necessary.

The duty of support

During a marriage, each spouse owes to the other a reciprocal duty of support, provided that the person claiming such support is actually in need of it and that the other spouse can actually provide it. This support includes accommodation, clothing, food, medical services and other necessities, and is balanced by the couple’s social status, their means of income and the cost of living. The duty to support each other is the responsibility of both spouses and means that if, for example, a woman does not have the financial means to support herself, her husband has a legal obligation to support her, and vice versa.

This reciprocal duty of support comes to an end on termination of the marriage, whether by death or divorce. However, in divorce situations, the Divorce Act 70 of 1979 makes provision for court orders relating to maintenance. Similarly, when a spouse dies, the surviving spouse can claim maintenance against the spouse’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. The executor of the estate has a duty to pay the maintenance.

Spousal Maintenance is not a right

Neither spouse has a statutory right to maintenance. The language in the Divorce Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such. The discretionary power of the court to make a maintenance award includes the power to make no award at all. As mentioned, our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible.

Forms

Form A: Application for Maintenance Order (J101E)

Form B: Substitution or Discharge of existing Maintenance (J107E)

Form C1: Subpoena (J126)

Form C2: Subpoena (J130)

Form D: Notification to admit Statements by Witnesses (J167)

Form E: Maintenance Order (J168)

Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance (J176)

Form G: Consent and Maintenance Order (J214E)

Form H: Order by Default and Notice (J252E)

Form I: Application for Variation/Setting Aside of an Order by Default (J256E)

Form J: Notice (J280)

Form L: Warrant of execution against Property (J397)

Form M: Application for Setting Aside of a warrant of a Warrant of Execution (J435E)

Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments (J438E)

Form O: Notices to and by Employer (J448)

Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts (J458E)

THE FOLLOWING FORMS ARE ISSUED BY COURT OFFICIALS ONLY

  • Form C1: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998 (Act No. 99 of 1998) [J126]
  • Form C2: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998 [J130]
  • Form D: Notification to admit Statements by Witnesses [J167]
  • Form E: Maintenance Order in terms of section 16 of the Maintenance Act, 1998 [J168]
  • Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance Order was made [J176]
  • Form H: Order by Default and Notice in terms of Section 18 read with Section 16 of the Maintenance Act, 1998 [J252]
  • Form J: Notice in terms of Section 19 of the Maintenance Act, 1998 [J280]
  • Form L: Warrant of execution against Property in terms of Section 27 of the Maintenance Act [J397]
  • Form O: Notices to and by Employer in terms of Section 29 of the Maintenance Act, 1998 [J448] [Regulation 6]

For more on maintenance, click here

More on Maintenance and Spousal Support

Spousal Maintenance

Spousal Maintenance

READ MORE
How to calculate maintenance

How to calculate Maintenance?

READ MORE
Interim Maintenance

Interim Maintenance

READ MORE

Main Menu

Cohabitation and Living Together
Engagement and the Law
Formalities of Marriage in South Africa
Same-Sex Relationships
Unmarried Parents and Children
Parental Rights and Responsibilities
Care and Contact (Custody) of Children
Divorce In South Africa
Divorce Process in South Africa
Division of Assets in Divorce
Divorce and Retirement Funds
Rule 43 and Interim Maintenance
Divorce a Missing Spouse
Adultery, Suing a Third Party
International Divorces in South African Courts
Parental Rights
Child Maintenance
Spousal Maintenance
Domestic Violence and Abuse

Family and Divorce Law Links

Family Law Links
Family Law Legislation

Family Law Matters
Court Judgements
Court Rolls

Online Services

Online DIY Divorce
Online Managed Divorce
Online Antenuptial Contracts
​

Partner Services

Family Law Mediation
Collaborative Divorce
Divorce Attorney Cape Town

Contact Details

BERTUS PRELLER
​MAURICE PHILLIPS WISENBERG

20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115


​
Email: familylaw@mpw.co.za
Facebook: divorceattorneys
Twitter: @bertuspreller

Family and Divorce Law Blogs

Divorce Attorney 

Social Networks

Picture
Picture
Picture
© 2020-  All content on this website is under copyright of  LawSplash - All Rights Reserved.
Legal Notices
  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Custody and Coronavirus
    • Relocation and Child Abduction >
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • Parental Alienation
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • Family Law Newsletter March 2017
    • September 2016 Family Law Newsletter
    • Family Law Newsletter 2017 1
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities