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Rehabilitative Maintenance

I recently saw a client who instructed me to institute a divorce action against her husband. He worked but my client did not. She instructed me to ask in her court papers that he pay rehabilitative maintenance to her for three years after the divorce. Rehabilitative maintenance is a form of financial assistance given by one spouse to the other as a temporary measure to enable that spouse to get back on his or her feet after the divorce.

In the case I mention above both parties were nearing the retirement age. The man was due to receive a monthly return from an investment once he retired. His wealth wasn’t great and my client asked me whether, if a court order for rehabilitative maintenance was made, and he passed away after the divorce, his estate would have to pay the maintenance which he had not yet paid. The answer to the above question posed to me by my client can be answered by the case of Kruger v Goss and Another (Supreme Court of Appeal) – unreported case no 603/08; 21-9-2009.

In the Kruger case the parties get married out of community of property with the exclusion of the accrual system, which basically means that each party retains whatever they owned before the marriage or bought during the marriage as his or her sole and absolute property. Four years after the marriage, the parties got divorced, and an order for the man to pay rehabilitative maintenance to his wife was made.

The court order stated that Mr. Kruger had to pay to her R8000 per month for October, November and December 2003. He then had to pay her R6000 per month for the next 57 months. Mr. Kruger however passed away without having made all of the maintenance payments in terms of the court order.

Mr. Kruger’s son was appointed as executor of his Will. Goss brought an application in the Pretoria High Court against the executor for the estate to comply with the divorce order and for the remaining 24 instalments to be paid (the deceased had paid 33 of the instalments which he was meant to). Goss succeeded with her application. But then the deceased’s son took the matter to the Supreme Court of Appeal (SCA).

The SCA had a different view on the matter. They referred to the common law which views the duty of support as being whilst the parties are married only. The court stated that when a relationship is terminated by death, that duty to support also comes to an end.

The court found that in the present case the deceased had not bound himself in his Will to continue paying maintenance after his death. The court was further of the view that to allow maintenance claims of this kind against deceased estates may have various undesirable consequences. The appeal therefore succeeded.

As appears from the above case, it is not always that easy to be awarded rehabilitative maintenance from an estate after a divorce. To answer my client’s question in the first two paragraphs of the article, her husband’s estate would not have to pay the maintenance which he had not yet paid if he had passed away.

If you are getting divorced and have an oldish spouse who is not in the best health, it may be best to insist on a case lumpsum payout rather than monthly instalments. This would prevent situations from arising as mentioned above if your ex-spouse passes away without having paid what is due to you.

This article was written by Cape Town lawyer, Peter M Baker

Related articles

Binding of your spouse's estate in the event of death

Maintenance & proof of paternity

When your spouse remarries

Maintenance for children aged over 18

Divorce rule 43

Application to reduce maintenance


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