The duty of maintenance, i.e., providing someone (your spouse or minor child), with housing, clothing, food, medical care and education, or other necessary fundamentals of life is an obligation which is a legal duty – also known as 'the duty to maintain’.
Although women and men are equally entitled to seek maintenance, in practice, most cases at present involving maintenance are brought by women. Neither spouse is automatically entitled to spousal maintenance on divorce. Our law favors 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.
During a marriage, each spouse owes to the other a reciprocal duty of support, provided that the person claiming such support needs it and that the other spouse can 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.
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 needs to 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.
A parent’s duty of support towards his/her child is not affected in any way by a remarriage and a stepparent is also under no obligation to support a stepchild. 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.
At RBA Attorneys can help you with the necessary applications especially Rule 43 of the High Court Rules which makes provisions for a process whereby a party to divorce proceedings may approach the court on an urgent basis to obtain interim relief pending the finalization of the divorce proceedings. This application deals with maintenance of a child or spouse, custody, conduct or access in respect of the children and contribution to legal costs as well.