Authored By: Hajra Nazeera Joosab
University of Kwa Zulu Natal
1. Introduction
South Africa has now enjoyed more than three decades of democracy; however, the South African family law framework has failed to bridge the chasm between domestic dependency and true economic autonomy. South African family law prides itself on progressive reform through the introduction of rehabilitative maintenance, a form of post-divorce spousal maintenance that enables financially dependent spouses to upskill, educate and train themselves in order to become self-supporting. Sadly, for the many uneducated, unskilled and financially dependent spouses who must navigate the harsh and bleak reality of divorce, it remains little more than a phantom remedy.
Spousal maintenance after divorce is two-tiered, and rehabilitative maintenance is the focus of this article. The other form, permanent maintenance, is very rare and scarcely awarded; where it is awarded, it is conditional upon factors such as remarriage, death or changed circumstances. The courts award rehabilitative maintenance mainly for a short, fixed period, usually between six and twelve months. This was evident in H.L v J.E.L (69227/17)1, in which the Gauteng High Court awarded the wife maintenance for a limited period of twelve months.
The awarding of rehabilitative maintenance is progressively reformative, as it aligns South Africa with the rest of the first-world countries. This concept, otherwise known internationally as alimony, embraces the “clean break” principle and post-divorce economic independence. Despite the practical advantages of rehabilitative maintenance, it remains a clearly contested area of law owing to concerns regarding judicial discretion, gender inequality, and the socio-economic realities of unemployment and poverty in South Africa. This article critically examines the legal framework, rationale, benefits and shortcomings of rehabilitative maintenance in South African divorce law.
2. Legal Framework Governing Rehabilitative Maintenance
The legal foundation for rehabilitative maintenance is found in section 7 of the Divorce Act 70 of 1979, as amended by the Divorce Amendment Act 1 of 20242, which addresses the division of assets and the maintenance of parties after the dissolution of the marriage. Section 7(1) addresses maintenance and the division of assets where the former spouses have reached consensus and an amicable agreement is in place. Section 7(2) applies where the former spouses are unable to reach consensus, and it is the legal basis on which our courts are granted a broad discretion to award maintenance where it is deemed just.
Section 7(2) empowers the court to make “an order which the court finds just”, having regard to the existing or prospective means and needs of the parties. This means that the courts should consider factors such as the parties’ means, earning capacities, needs, financial obligations, age, the duration of the marriage, the standard of living during the marriage, and any other relevant considerations. The Divorce Act, as amended by the Divorce Amendment Act 1 of 2024, does not expressly define rehabilitative maintenance; section 7(2) merely empowers South African courts to determine the nature and duration of maintenance awards. [justice.gov.za], [derebus.org.za]
South African courts have consistently held that there is no automatic right to maintenance following divorce. In Strauss v Strauss 1974 (3) SA 79 (A)3, the Appellate Division confirmed that a spouse is not entitled to post-divorce maintenance merely because the marriage has ended. This principle has been reaffirmed in subsequent decisions, which emphasise that maintenance is determined on the facts of each case and remains subject to judicial discretion. [derebus.org.za]
3. The Purpose of Rehabilitative Maintenance
The primary purpose of rehabilitative maintenance is to facilitate the transition from financial dependence to economic self-sufficiency. Unlike permanent maintenance, rehabilitative maintenance is designed to support a spouse temporarily while he or she acquires the employment, re-training or educational qualifications necessary to secure an income. [derebus.org.za], [rfhinc.co.za]
This approach reflects changing societal attitudes toward marriage and divorce. Historically, and culturally to date, it is predominantly women who remain economically dependent on their spouses owing to traditional gender roles, and this remains a current phenomenon. Modern family law increasingly recognises that most divorcing spouses should, where possible, become financially independent after divorce. Consequently, South African courts show a growing preference for maintenance orders of limited duration rather than indefinite support. [derebus.org.za], [familylaws.co.za]
4. Advantages of Rehabilitative Maintenance
(a) Promotion of Financial Independence
One of the strongest arguments in favour of rehabilitative maintenance is that it promotes self-reliance and personal autonomy. By providing temporary financial assistance, the law encourages dependent spouses to obtain education, vocational training or employment rather than relying indefinitely on their former spouses. This aligns with the constitutional values of dignity and equality. [rfhinc.co.za], [familylaws.co.za]
(b) Support for the Clean Break Principle
Rehabilitative maintenance is consistent with the “clean break” principle, which seeks to terminate financial ties between former spouses as soon as reasonably possible. This dictates that a marriage’s reciprocal duty of support terminates upon divorce, as confirmed in M v M (WCC) (unreported case no. A112/10, 25 February 2011)4. The “clean break” principle accords with the idea of both parties moving on with their lives as quickly as possible and with minimal ongoing financial entanglement.
Courts advocate this as a temporary financial bridge, as they increasingly regard prolonged dependency as undesirable and prefer solutions that enable each party to establish an independent post-divorce life. [familylaws.co.za], [derebus.org.za]
(c) Courts Need to Be “Just” to the Paying Spouse
A further advantage is that rehabilitative maintenance balances the interests of both parties. Permanent maintenance can impose a substantial and indefinite financial burden on the paying spouse. In EH v SH 2012 (4) SA 164 (SCA), the Supreme Court of Appeal held that a person claiming maintenance must establish a need to be supported by the other spouse, failing which it would not be “just to issue a maintenance order”.5
Rehabilitative maintenance thus limits this burden on the paying spouse whilst still protecting the economically vulnerable spouse during a transitional period.6 [rfhinc.co.za], [derebus.org.za]
(d) Tax Exemption
Section 10(1)(u) of the Income Tax Act 58 of 1962 exempts maintenance payments from taxation in the hands of the recipient. The South African Revenue Service (SARS) administers taxation together with other revenue. This exemption is beneficial to the dependent spouse, who is not liable to pay additional amounts to the government in tax on the maintenance received. It is only the paying spouse who remains responsible for the tax on his or her own income.
5. Criticisms of Rehabilitative Maintenance
(a) Excessive Judicial Discretion
A major criticism of the South African approach is the lack of statutory guidelines governing the amount and duration of rehabilitative maintenance. Courts exercise a broad discretion under section 7(2), resulting in inconsistent outcomes. Similar factual circumstances can produce different maintenance awards, depending on the presiding judge’s interpretation of fairness and justice. [derebus.org.za]
The absence of clear legislative criteria creates uncertainty for litigants and may contribute to costly and protracted litigation. From a rule-of-law perspective, greater predictability would enhance fairness and consistency in maintenance determinations.8
(b) Claim Window
In terms of section 7 of the Divorce Act, a maintenance order is made by the court granting the decree of divorce. Dependent spouses are therefore required to initiate their maintenance claims during the divorce proceedings. Once the proceedings have been finalised and the decree of divorce has been granted, the claim for maintenance falls away.
(c) Failure to Address Gender Inequality
Although rehabilitative maintenance seeks to promote independence, critics argue that it often fails to account adequately for the structural inequalities that disproportionately affect women. During marriage, many women sacrifice career development opportunities to raise children or perform domestic work. As a result, they may possess limited work experience and diminished earning capacity at the time of divorce. [derebus.org.za]
A short-term maintenance award may therefore inadequately compensate for the years of economic disadvantage experienced during the marriage. Feminist scholars argue that strict adherence to rehabilitative maintenance may undervalue non-financial contributions to the family and reinforce existing inequalities.
(d) Unrealistic Assumptions About Employment Prospects
The effectiveness of rehabilitative maintenance depends upon the assumption that the recipient spouse can become self-supporting within a relatively short period. However, this assumption may be unrealistic in South Africa’s economic environment, where unemployment rates remain high and opportunities for older individuals re-entering the labour market are often limited. [rfhinc.co.za], [derebus.org.za]
For spouses who have been absent from the workforce for many years, rehabilitation may be difficult or impossible. In such circumstances, the termination of maintenance may expose vulnerable individuals to poverty and financial hardship.
(e) Potential Conflict with Substantive Equality
The constitutional commitment to substantive equality requires the courts to recognise the differing social and economic realities faced by individuals. The “clean break” principle, while attractive in theory, may conflict with substantive equality where one spouse’s dependence arises directly from sacrifices made for the benefit of the marriage and family. [derebus.org.za], [familylaws.co.za]
Consequently, some commentators argue that a rigid preference for rehabilitative maintenance risks prioritising formal equality over actual fairness.
6. Comparative Jurisdiction
Rehabilitative maintenance, or what is termed more specifically “alimony” in England and Wales, is primarily governed by section 25 of the Matrimonial Causes Act 1973. This framework grants family courts immense judicial discretion to award financial support based on equitable principles, fairness, and the reasonable needs of the financially weaker party. However, the legislature’s primary shortfall lies in this flexibility, as the statute is over half a century old and therefore depends on subjective judicial interpretation to determine what constitutes “undue hardship” during a transition to financial independence.
This absence of a clear statutory ceiling or mathematical formula creates regional inconsistencies as well as unpredictable outcomes, often described by practitioners as a financial “Russian roulette”. This mirrors our current South African legal framework, which is in urgent need of legal transformation. Furthermore, while modern case law has increasingly restricted the traditional, indefinite “meal ticket for life” in favour of fixed-term transitional orders, the underlying statutory framework fails to offer explicit legislative guidelines for modern dual-income households, leaving both high earners and dependent spouses trapped in expensive, adversarial litigation to resolve their financial futures.
7. Comparative Perspectives: Finland and Switzerland
The legislative progression of spousal alimony in Finland and Switzerland reflects a shared modern push toward the “clean break” principle, prioritising post-divorce economic self-sufficiency, yet this evolution has exposed critical structural shortfalls for financially dependent spouses.
Switzerland has progressively dismantled automatic alimony guarantees through Federal Supreme Court rulings, replacing them with a strict evaluation of a marriage’s “formative effect” (lebensprägend), meaning that support is granted only if a spouse demonstrably sacrificed their career for domestic or childcare duties. Similarly, Finland’s Marriage Act framework relies on individual economic independence, rendering spousal maintenance agreements increasingly rare and primarily limited to short-term transitions. The core shortfall of these systems lies in a policy mismatch: both jurisdictions have restricted alimony under the assumption of rising gender equality, but the decline in financial support has drastically outpaced actual gains in women’s economic self-sufficiency. Consequently, dependent spouses who still disproportionately shoulder domestic sacrifices frequently face a widening wealth gap and heightened economic vulnerability, as legal expectations of immediate labour-market reintegration conflict with the persistent structural barriers of the modern workforce.10
These comparative experiences hold a cautionary lesson for South Africa, whose own labour market presents even steeper barriers to economic independence.
8. Critical Evaluation
The concept of rehabilitative maintenance represents a sensible compromise between permanent dependency and complete financial severance. It recognises the importance of personal independence while providing protection to economically vulnerable spouses.
Nevertheless, the South African model remains imperfect. First, courts should adopt a more contextual approach that considers South Africa’s high levels of unemployment, gender inequality and economic exclusion. Second, legislative reform could provide clearer guidelines regarding the duration and calculation of rehabilitative maintenance, thereby reducing inconsistency and uncertainty. Finally, maintenance awards should more fully acknowledge the non-financial contributions made during the marriage, particularly caregiving and domestic labour.
A balanced approach is necessary. While rehabilitative maintenance should remain the preferred option where realistic prospects of self-sufficiency exist, courts must avoid applying the “clean break” principle mechanically. In some cases, particularly those involving long marriages, advanced age, poor health or limited employability, permanent maintenance may still represent the most equitable outcome.
9. Conclusion
Rehabilitative maintenance is a statutory remedy; it does not arise from a delict (tort), which is defined as a civil wrong. It has become an important mechanism in South African divorce law, reflecting modern social values and supporting the clean break principle by promoting financial independence and thereby limiting dependence between former spouses.
In theory, however, rehabilitative maintenance has been designed by the courts as a launchpad for newly single individuals. Sadly, the stark reality of South Africa’s current labour market transforms it into a trapdoor, abandoning unskilled, financially dependent spouses to a futile and aborted task. Without the systemic vocational and financial infrastructure required to survive the transition out of financial precarity, legislative reform is vital.
Its effectiveness is further undermined by broad judicial discretion, insufficient recognition of gendered economic disadvantage, and unrealistic assumptions concerning employability in South Africa’s economic context. A more nuanced and structured approach would better achieve the objectives of fairness, equality and economic justice that underpin family law.
Bibliography
- H.l v J.E.L (69227/17[2021]ZAGPPHC 26<Gauteng High Court
- Divorce Act 70 of 1979: Divorce Amendment Act 1 0f 2024
- Strauss v. Strauss 1974 (3) SA 79 (A).
- M v. M (WCC) (unreported case no. A112/10, Feb. 25, 2011) (S. Afr.). Discussed in The Court’s Discretionary Power to Award Rehabilitative Maintenance
- EHY v SH(2012)4 SA 164 SCA
- M v. M (FB) (unreported case no. 4906/2016, July 30, 2018) (S. Afr.). Discussed inThe Court’s Discretionary Power to Award Rehabilitative Maintenance.
- The Income Tax Act 58 0f 1962 of South Africa
- Mvuzo Notyesi,The Court’s Discretionary Power to Award Rehabilitative Maintenance, De Rebus (Aug. 1, 2020),Bertus Preller,Rehabilitative Maintenance and the Clean Break Principle, Family Laws South Africa (2026),Raymond Hauptfleisch,Spousal Maintenance After Divorce in South Africa: What You Are Entitled to Receive or Obliged to Pay, RFH Inc. Attorneys (2026);
- S25 of the Matrimonial Causes Act 1973 enacted by the UK Parliament
- Professor Jens M Scherpe Volume 3 Elgar Comparative Family Law 2016
https://www.derebus.org.za/the-courts-discretionary-power-to-award-rehabilitative-maintenance/.
[familylaws.co.za (https://ideas.repec.org/a/wly/empleg/v17y2020i3p493-518.html)
