Are you recently divorced and a stay at home parent? Know your rights and get what you deserve!
In South African law, section 7(2) of the Divorce Act 70 of 1979 (as amended) deals with the payment of maintenance in situations where no settlement agreement has been entered into between the parties, and it’s up to the courts to deal with the matter of maintenance.
What happens if I get divorced?
Rehabilitative maintenance refers to divorce situations where a maintenance order is given for a certain time after the divorce is finalised. The court makes a decision based on certain factors, including; the divorcing couple’s current and potential future financial means, their ages, the length of the marriage, their standard of living before the divorce, and any behaviour that may have contributed to the divorce.
In South Africa, it is unlikely that maintenance will be awarded to a party who can support themselves, or has the ability to support themselves. If the stay at home parent has not abandoned or downscaled his/her career to stay at home to take care of the children, no maintenance will be awarded.
How can the law protect me?
An award for rehabilitative maintenance is usually given when the court finds that a marriage has significantly affected the ability of one person to support themselves. When maintenance is awarded, the court takes into consideration the amount of time it will take for the stay at home parent to upskill him/herself to re-enter the job market. In many cases, it isn’t possible for the stay at home parent to re-enter the job market, and they may find themselves without an income once the period of rehabilitative maintenance is over.
Courts need to look at how employable the stay at home parent is when he/she seeks a maintenance award. If employability isn’t possible, the stay at home parent should be granted maintenance until death or remarriage.
The ages of the couple’s children will also be taken into consideration, as well as which parent will be the primary resident parent. Rehabilitative maintenance could be awarded to the stay at home parent to take care of the children until they can support themselves.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)