Spousal Maintenance vs Child Maintenance in South Africa
People often lump "maintenance" together, but child maintenance and spousal maintenance are very different. One is an automatic right that belongs to the child; the other is a discretionary award a court may make on divorce — and often only for a limited time.
Child Maintenance
Financial support for a child's needs — food, shelter, clothing, education and medical care. Both biological parents share this duty according to their means, whether or not they were ever married or lived together.
When it applies: Always — from birth until the child is self-supporting (which can be beyond 18 if the child is still studying).
Law: Maintenance Act 99 of 1998; common-law duty of support; Children's Act 38 of 2005 s 18(2)(d)
Example: An unmarried father must contribute to his child's monthly costs even though he never lived with the mother.
Spousal Maintenance
Support one ex-spouse pays the other after divorce. It is NOT automatic — a court grants it at its discretion, and increasingly only for a limited "rehabilitative" period so the receiving spouse can become self-supporting.
When it applies: Only on divorce, and only if the court finds it just — weighing the length of the marriage, each spouse's earning capacity and age, and the standard of living during the marriage.
Law: Divorce Act 70 of 1979 s 7(2)
Example: After a long marriage in which one spouse was a homemaker, a court orders rehabilitative maintenance for three years while that spouse retrains.
Key Differences at a Glance
| Aspect | Child Maintenance | Spousal Maintenance |
|---|
| Who it belongs to |
The child — it is the child's right |
An ex-spouse |
| Automatic? |
Yes — both parents always owe it |
No — discretionary and must be justified |
| Depends on marriage? |
No — owed whether parents married or not |
Yes — arises only from divorce of a valid marriage |
| Duration |
Until the child is self-supporting |
Usually rehabilitative (a fixed period); permanent is rare |
| Can it be waived? |
No — a parent cannot contract out of a child's right |
Yes — spouses can agree to no spousal maintenance |
Frequently Asked Questions
Does living together without marriage create a duty to pay spousal maintenance?
No. South Africa does not recognise "common-law marriage", so cohabiting partners have no automatic duty to maintain each other after separating. But child maintenance is still owed for any children of the relationship.
Can a parent stop paying child maintenance if they are denied contact with the child?
No. Maintenance and contact are separate legal issues. A parent must keep paying even during a contact dispute — withholding maintenance is not a lawful response and can lead to criminal prosecution.
Is spousal maintenance guaranteed after a long marriage?
No. Even after a long marriage it remains at the court's discretion. South African courts increasingly favour a "clean break", ordering rehabilitative maintenance for a set period rather than lifelong support.
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