Officially, none of these factors is regarded as more important than others by the courts - however, as with child maintenance, need and ability to pay are major considerations in the awarding of maintenance.

 

Rehabilitative Maintenance

If the circumstances justify it, the court can order a spouse (usually the ex-husband) to pay maintenance to his ex-wife until death or remarriage.  However, this is unusual today, and will normally be reserved for cases where the ex-wife is fairly old, has little means of support and little chance of finding employment.

 

Usually, the courts order maintenance for a limited period referred to as “rehabilitative maintenance.”  This is maintenance paid to an ex-wife (usually) for a period (on average 6 months to 3 years), to allow her to “get back on her feet”, either by finding a job or re-qualifying.  But every case is unique, and the court will consider all the factors listed above in making an order for maintenance.

               

Interim Maintenance

When spouses separate intending to get divorced, the question of interim maintenance often arises. Once they separate, it often happens that one spouse (usually the wife), finds she has insufficient funds to maintain her (now separate) household, to feed her children or for medical expenses.  In this situation, there is a legal duty on the wealthier spouse to pay interim maintenance to the poorer spouse, provided he can afford it.  Indeed, since the marriage has not yet come to an end, the legal duty of support owed by one spouse to the other during the marriage remains in force.  The husband (usually) is therefore obliged to maintain his wife and children after separation, even before the court has made a ruling regarding maintenance.

Sometimes, however, the wealthier spouse refuses to pay interim maintenance for his spouse and children or pays insufficient interim maintenance.  If the matter cannot be resolved by agreement between the parties, the aggrieved party can apply to court for what is known as a Rule 43 order.

               

Rule 43 Application

This is a relatively quick procedure to come to court to claim interim maintenance or interim custody/access to minor children.  The application is only available to a party who has commenced divorce proceedings. 

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The application is brought to court by way of affidavit.  That is, each party will set out its claims in affidavits.  These are then placed before the court and argued by advocates.  In other words, a Rule 43 application does not involve the parties appearing in court, giving evidence, and being cross-examined.  In fact, the parties do not even have to be at the hearing.

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Regarding maintenance, the court will essentially look at two factors:

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• The applicant spouse’s needs (and the children if relevant); and

• The respondent spouse’s ability to pay

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​If the court is satisfied that the poorer spouse needs exceed her income - and the wealthier spouse has the means to pay, it will order the wealthier spouse to pay maintenance or additional maintenance.

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The interim order will remain in effect until the grant of the final order of divorce.  When the divorce is granted the court may decide that the terms of the Rule 43 order should be retained in the final order, or it may make its own order regarding maintenance, custody, and access.

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A Rule 43 Application usually takes about one month to come to court.  However, if it is very pressing, the court can be approached to hear the case as a matter of urgency.

 

Maintenance of Minor Children

Parents have a common law duty to support their minor children in accordance with their respective means until the children are self-sufficient. In other words, if the parents earn similar incomes, they must contribute equally towards the upkeep of the children.  However, if, for example, the ex-husband earns twice as much as his ex-wife, he must contribute 66.6% of the maintenance for the children.

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In assessing the amount of maintenance to be paid for minor or non-self-supporting children, there are two main factors considered, namely:

• The reasonable needs of the children; and

• The parents’ ability to pay.

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The children’s needs include food, housing, clothing, medical care, and education.  In assessing the amount of maintenance to be awarded, the court will consider the particular social stratum of the child. 

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From a practical point of view, the first step taken in a case involving child maintenance is to make a comprehensive list of all the child’s expenses.  Thereafter, the attorneys will require both parties to provide their payslips or other proof of income, along with a list of their own expenses.  Armed with this information it is usually possible to arrive at a fair calculation of the maintenance each former spouse should contribute.

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Interim child maintenance         

As noted above, where children are receiving little or no maintenance after their parents separate but before the divorce is finalized, the custodial spouse can bring an application for interim maintenance, by way of the RULE 43 APPLICATION. 

                               

The Maintenance Court

As an alternative to applying for maintenance through the High Court, or the Regional Court, a person may apply for maintenance via the Maintenance Court, whether before, during or after divorce.  This court has been specifically set up to deal with maintenance matters and can even alter an order of the High Court in appropriate circumstances.

               

The downside of applying for an order via the Maintenance Court, however, is that it is a lengthy and often cumbersome process, with lots of delays and postponements.  It can easily take up to six months or more to reach finality in the Maintenance Court. There are however circumstances where it makes sense to proceed via the Maintenance Court.  Your attorney will be able to advise you.