Rehabilitative Maintenance During a Divorce

The term “rehabilitative maintenance” was coined to deal with situations where a maintenance order is set for a limited period of time before a divorce is finalised. Section 7(2) of the Divorce Act is the piece of legislaton that deals with the payment of maintenance in these situations, i.e before a settlement agreement has been reached.

Section 7(2) sets out in broad terms how maintenance will be paid. To decide this, the court takes into account the following criteria about the divorcing couple:

• Their existing or prospective financial means
• Their respective earning capacities
• Their financial needs and obligations
• Their ages
• The duration of their marriage
• Their standard of living before their divorce
• Their conduct if it was relevant to the breakdown of the marriage
• Any other factor which the court may decide is relevant

For the purposes of this article, I’ll refer to the party claiming rehabilitative maintenance as the wife, although it’s important to bear in mind that a stay-at-home house husband has every right to claim maintenance from his breadwinner wife on the same bases.

An award for rehabilitative maintenance is usually given when the court finds that a marriage has detrimentally affected the ability of a wife to support herself. This is usually because she has stayed at home to look after children, although her prospects of re-educating herself and finding employment are fair and reasonable.

In these instances, an award will be made that takes into account the length of time it will take for the wife to upskill herself and re-enter the job market. Various factors will be considered when determining how long the rehabilitative maintenance will be granted for, including the ages of the divorcing parties’ children, whether the wife will be the primary resident parent and the age of the wife at the date of divorce.

In South African law, no maintenance will be awarded to a person who can support themselves or has the potential ability to support themselves. If the wife has not abandoned or downscaled her career to remain at home and care for the children, no maintenance will be awarded.

Difficulties often arise where the wife has been married for, say, fifteen to twenty years and is in her early to middle forties. She may have worked prior to the marriage, but afterwards she devoted herself full time to managing the home and taking care of their children. While she may be relatively young, awarding rehabilitative maintenance to her for a limited period of time assumes that she will be able to be retrain herself and find a suitably paid position.

In many cases the ability of these women to re-enter the job market is non-existent. They find themselves without an income once the period of rehabilitative maintenance has finished, and are in dire straits. In most cases, they are also the primary resident parent of the children. This is a difficult situation, because they’re unable to provide a proper home and the amenities they were used to before the divorce.

It’s therefore imperative for the courts to look at how employable a wife is when she seeks a maintenance award. If her employability is non-existent, a maintenance award should be granted until her death or remarriage, and not just temporarily. Alternatively, rehabilitative maintenance could be awarded to her on a sliding scale, so that she can care for her children until they can support themselves.

By Gillian Lowndes, attorney specialising in family law