How to find a divorce lawyer in Cape Town, South Africa

Token or minimal maintenance

When somebody against whom a maintenance order is made does not work, the court allows usually what is referred to as “token maintenance”.  This often is in the form of maintenance being awarded at R1 per annum.

The aim of this is to keep the maintenance order going so that when that person finds employment, the other person can take him or her back to the maintenance court straight away.  This is only fair.

Often somebody consults me and his or her husband or wife doesn’t work.  They have a child together.  They find it strange that I suggest an order of R1 per annum maintenance being inserted in the settlement agreement.  The reality of the matter however is that no court will award maintenance of a few hundred or few thousand rand against somebody who isn’t working and isn’t in a financial position to pay that.

Recent case law dealing with token or minimal maintenance is that of MG v RG 2012 (2) SA 461 (KZP).  In this case an order of a decree of divorce and division of the joint estate was made by the North Eastern Divorce Court in Durban.

The wife had in her papers also asked for R1000.00 maintenance per month and forfeiture of the benefits of the marriage.  The court rejected these claims.

On the appeal, the High Court allowed token maintenance of R1 per annum.  The forfeiture claim was referred back to the divorce court for reconsideration.

Gabriel, A.J. and Ndlovu, J both concurred in their decisions.  The court found that the court must use its discretion when deciding to allow token or minimal maintenance.  Courts have to take into account the factors listed in s 7(2) of the Divorce Act 70 of 1979.

Once a court makes a divorce order that order is final.  If no order is made for one spouse to pay another spouse maintenance at the time of divorce, that cannot be changed.

The court found that token maintenance was justified in this case.  R1 per annum was awarded in favour of the appellant.  The reasoning behind this was that the circumstances of the respondent may well change in the future.

The aim of token maintenance is to preserve a party the right to approach the court for increased maintenance in the future if a spouse’s personal circumstances were to change.  This is fair and reasonable.

This was the correct decision of the court.  So even though clients are sometimes shocked with the “R1 per annum” award, this is actually in their favour as they can at a later stage go back to court to ask for more maintenance when it is justified and their ex finds more suitable employment.

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

Related Articles

Divorce and Spousal Maintenance

How affairs impact divorce settlements

Forfeiture of benefits of marriage in community of property

The Final Divorce Order


married overseas annulmentreasons for divorce