Child and Spousal Maintenance After Death and Divorce: What You Need To Know

Whilst Section 7 (1) and (2) of the Divorce Act 70 of 1979 provides for the spousal maintenance procedure upon divorce, the Maintenance of Surviving Spouses Act 2 of 1990 provides that of a surviving spouse to claim maintenance from the late estate of their deceased spouse, and the Executor of the estate is obliged to pay such maintenance.

Spousal Maintenance in South Africa

This emanates from the duty of support that exists between spouses in a marriage as was held in the case of Oberholder vs Oberholder 1947 (3) SA 294 (O).

Whereas a legally recognised automatic duty to maintain exists upon the biological or adoptive, married or unmarried parents of a child towards that child, it is noteworthy that Section 7 (1) of the Divorce Act uses the word “may” to indicate the discretion that the Court exercises on whether to grant spousal maintenance or not.

The party claiming spousal maintenance must prove that a real need for maintenance exists and that the Respondent is capable to meet such need. Upon the Court finding that the Applicant has failed to prove this, the Court will find in favour of the clean break principle which envisages that parties be economically independent of each other as soon as possible upon divorce.

In determining an application for spousal maintenance, the Court is guided by section 7(2) of the Divorce Act 70 of 1979 which contains factors which must be put into consideration. These relate to;

• Existing or prospective means of each of the parties;
• Their respective earning capacities;
• Financial needs and obligations;
• The age of each of the parties;
• The duration of the marriage;
• The standard of living of the parties prior to the divorce;
• Their conduct in so far as it may be relevant to the breakdown of the marriages and;
• Any factor which in the opinion of the court should be taken into account.

Child Maintenance in South Africa

Children’s maintenance is regulated by section 28 (1)(c) of the Constitution of the Republic of South Africa Act 108 of 1996, the Maintenance Act 99 of 1998, Children’s Act 38 of 2005 and the Maintenance Amendment Act 9 of 2015.

Both parents have the duty to support the child taking due regard of their respective means, as provided by Section 15 (3) (a) of the Maintenance Act 99 of 1998. The duty to support children falls on the child’s parents, grandparents, siblings or anybody entrusted with care of the child.

In Fish Hoek Primary School vs GW 2010 (2) ALL SA 124 (SCA) a parent had argued that he is not liable to pay school fees because they are not the custodian parent, the Supreme Court rejected this view and made a finding that the parent is still liable for the education expenses of the child despite the fact that they are not the custodian parent.

Although food, accommodation, clothing, health care and education are widely accepted as the basic needs for children, the circumstances of each case will determine what actually constitutes adequate support for the child.

The factors around the standard of living of the parties and their respective means play a huge role when the Court makes a finding. Despite thereof, should circumstances change (losing a job, child no longer attending school, expenses increasing) there are provisions for making an application to either reduce, increase or discharge the maintenance order given and upon the Court making such variation, the party ordered to pay must continue paying as per the existing order. 

Van Deventer & Van Deventer Incorporated – Family Law Attorneys in South Africa

Whilst the factors alluded to above seem straightforward, it is their application to given circumstances which is more complex, and it is advised that parties seek legal guidance in bringing or defending maintenance applications. As always our approach is committed, professional and diligent.  We will assist comprehensively in all the matters that we handle. Contact us to find out more.

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