Lize de la Harpe, Senior Legal Advisor at Sanlam
Under our law, parties to a marriage have a reciprocal duty to support each other. This duty, however, comes to an end when the marriage is terminated as a result of divorce or death.
Spousal maintenance for life or until remarriage used to be quite common in lengthy marriages, especially where one spouse was the caregiver and had not worked for years. This area of law has however seen a major shift over the last few years.
This shift is largely due to the “clean break” principle in terms of which a court will aim to achieve an outcome whereby the parties are financially independent post-divorce, if the circumstances permit. As such, lengthy rehabilitative maintenance has become extremely difficult to obtain.
In this edition we will unpack a recent High Court judgment handed down on 2 May 2026 where the court unpacked its approach to the concept of rehabilitative maintenance post-divorce.
The legal position
At common law a spouse has no right to maintenance upon divorce. Section 10(1) of the Matrimonial Affairs Act, 1953 remedied this situation by providing that a court granting a divorce may make such order against the guilty spouse for the maintenance of the innocent spouse for any as the court may deem just or as per an agreement between the parties. From then onwards, the payment of maintenance after divorce could be made orders of court.
Section 10(1) of the Matrimonial Affairs Act has since been repealed by sections 7(1) and 7(2) of the Divorce Act, 1979, which only differs to the extent that it has omitted the distinction between guilt and innocence (since fault has fallen away when it came to divorce), and added a number of factors to be considered by the court when granting an order for the payment of maintenance.
The default position with regard to maintenance has always been that the divorcing parties should make an effort to reach an agreement instead of a court deciding the issue on their behalf – hence the inclusion of section 7(1) of the Divorce Act which specifically provides that a written agreement between the parties regarding inter alia be the payment of maintenance by the one party to the other may be made an order of court.
However, where the parties are unable or unwilling to reach an agreement, section 7(2) empowers the court to make a just order with regard to the payment of maintenance which it deems just. This is what we typically refer to as “rehabilitative maintenance”. The spouse claiming maintenance will have to establish a need to be supported. In EH v SH my 2012(4) SA 164, the SCA held that a person claiming maintenance must establish a need to be supported by the other spouse.
The court will only make an order for the payment of rehabilitative maintenance if, based on the facts, such an order would be “just”. In determining what would be “just”, the court will take into account a number of factors, such as the existing or prospective means of the parties, their respective earning capacities, their age, their financial needs and obligations, the duration of the marriage, the standard of living of the parties prior to the divorce and their conduct in so far as it may be relevant to the break-down of the marriage.
The duration of any such maintenance will depend on the facts of the matter. In Kroon v Kroon 1986 (4) SA the court found that middle-aged women who have for years devoted themselves full-time to the managing of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to enable them to be trained or retrained for a job or profession, provided she can be trained or retrained. Permanent maintenance, on the other hand, is reserved for the elderly wife who has been married to a husband for a long time and is too old to earn her own living and unlikely to remarry.
M.I.B v D.B [2026] ZAGPPHC 411 (2 May 2026)
The parties married on 13 December 2003 out of community of property, with the inclusion of accrual system. One child was born from the marriage, who was a student at the time of the proceedings.
The issue before the court included the amount of rehabilitative maintenance claimed by the plaintiff for herself, being the amount of R45,000 per month for a period of 10 years. The plaintiff had been employed by Momentum Insurance from 2000 until 2018, earning quite a significant salary. The parties came to a joint decision that the applicant would leave her position to become a stay-at-home mom, focussing on raising their son. Upon resignation, she became entitled to a withdrawal benefit from the retirement fund she was a member of by virtue of her employment in the amount of roughly R1.37m, R900 0000 of which she then used to pay into their bond.
In November of 2018 the defendant started paying her monthly in the amount of R 40 000.00 which she utilised for personal care, fuel, utilities, groceries etc. This amount was increased during 2021 to R 45 000.00 per month. The plaintiff testified that the agreement between them since the start of their marriage was ‘dop en krop’ which she explained as the defendant would pay for anything home related i.e. bond etc and she would pay all the rest, like utilities, groceries etc. After the plaintiff stopped her employment, the defendant, at least from November 2018 had to pay everything, either directly or through the monthly stipend.
The plaintiff returned to work on 1 July 2023, earning roughly 1/5th of her former salary – which didn’t come near to covering her monthly expenses. As such, she sought rehabilitative maintenance of R45,000.00 per month for ten years. The defendant, who earned roughly R125 000 net per month, argued that he intended to retire in 2030, and as such would thereafter not have the means to pay such a large sum.
With regards to the amount claimed, the court referred to the matter of MB v NB 2010 (3) 220 (SGJ) where the judge emphasised the importance of both parties maintaining a standard of living comparable to that enjoyed during the marriage, subject to affordability constraints. Considering the facts as well as the parties standard of living and respective means, the court found her stated need as well as duration she was claiming to be excessive. The defendant’s intended retirement in 2030 meant that his income, and with it his ability to pay, would end within a few years, while the plaintiff stood to receive roughly R6,5m as her agreed 50% share of his pension interest.
Weighing the willingness the defendant had shown to support his family throughout the marriage against the plaintiff’s proven shortfall and her capacity to rebuild her earnings, the court ordered the defendant to pay rehabilitative maintenance in the amount of R30 000.00 per month, escalating annually with CPI, together with a contribution of R11 000.00 per month towards medical aid, both of which would end at the earliest of the defendant’s retirement, the sale of the former matrimonial home, the plaintiff’s remarriage or entry into a new relationship, or the death of either party.
Conclusion
Spousal maintenance is a discretionary remedy granted to a court in terms of section 7(2) of the Divorce Act,1979, which discretion must be exercised within the constraints of this section.
Case law makes it clear that a claim for spousal maintenance should not be aimed at regaining a former lifestyle post-divorce, but rather at maintaining the claimant’s current, reduced standard of living within the limits of affordability. It is only where the court believes it would be just that an order for rehabilitative maintenance will be granted.
ENDS
