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MAINTENANCE

 

OVERVIEW

The concept of maintenance exists in almost all countries of the world, with prevalence in developed countries. It is regulated through state laws in each country and is referred to by different names. While it is called alimony in the United States, you will hear about it as maintenance in England and South Africa, spousal support in Canada or spousal maintenance in Australia.

The concept can be defined as a legal obligation; one of the spouses (husband or wife) will be under legal obligation to provide financial support the other one, after divorce has occurred. Maintenance can also be sought by one spouse from the other before the actual divorce is granted. In South Africa this is regulated by Rule 43 of the High Court Rules.

 

HISTORY OF MAINTENANCE- FROM ANCIENT TO MODERN TIMES

The word alimony’ has Latin origins and it was chosen as the husband needed to provide his former wife with the necessary sustenance after divorce. At some point, that was not necessarily related to money but also to housing, food and even clothing. In fact, going back in history, we will discover that ancient codes talked about the fact that men should provide sustenance to women, if they have children together and they have decided to separate.

This is the basic foreground on which the modern concept of maintenance has evolved. History brings us to England, where, before the 19th century, when maintenance could be given to the wife until legal separation took place. This was legally perceived as support while the marriage continued; however, at that point, the concept of divorce did not exist. Permanent alimony was given to the wife after the legal separation, even though in legal terms the marriage was still valid.

 

DIVORCE, ALIMONY AND GENDER EQUALITY

It was in the 19th century that divorce appeared as a notice and it was possible only in cases where marital fault was identified. Maintenance was given to the wife, as it was almost always supposed that the husband was guilty of marital fault.

In South African law, the fault principle has been done away with, and is regulated mainly by two principles, namely, the need of the one spouse to be maintained, and the financial ability of the other spouse to pay maintenance. If a person refuses to pay maintenance, or delays payment, then, according to the law, a warrant of arrest for imprisonment can be authorised by the court.

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