What is a non-working spouse entitled to in a divorce in South Africa

According to South African law, a non-working spouse is someone who does not earn an income during the marriage, often relying financially on the working spouse. The law recognises their contributions, such as homemaking or childcare, as valuable to the marriage and provides certain rights during divorce proceedings.

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What a Non-Working Spouse is Entitled to During Divorce

If you are a non-working spouse, you are entitled to the following seven things during a divorce in South Africa:

1. Maintenance or Spousal Support
   The working spouse may be ordered to pay spousal maintenance to support the non-working spouse after the divorce. This can be temporary or permanent, depending on factors such as the length of the marriage and financial dependency.
2. Division of Marital Property
   Depending on the marital property regime:
   • In Community of Property: You are entitled to 50% of the joint estate, which includes assets and debts.
   • Out of Community of Property with Accrual: You are entitled to a share of the growth in the working spouse’s estate during the marriage.
3. Child Maintenance
   If you are the primary caregiver of minor children, the working spouse is legally required to pay child maintenance. This amount is calculated based on the needs of the child and the financial capacity of the working spouse.
4. Custody and Access to Children
   The Children’s Act, 38 of 2005, prioritises the best interests of the child. Non-working spouses often receive custody if they have been the primary caregiver.
5. Household Effects
   You are entitled to a share of the household furniture, appliances, and other belongings, especially if they were acquired during the marriage.
6. Pension or Retirement Benefits
   If the marriage is in community of property or out of community with accrual, you may be entitled to a portion of the working spouse’s retirement savings under the Pension Funds Act, 1956.
7. Protection from Domestic Violence
   If abuse occurred, you can apply for a protection order under the Domestic Violence Act, 116 of 1998 to ensure your safety during and after the divorce.

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What You Are Not Entitled To

However, as a non-working spouse, you are not entitled to:

1. Unlimited Maintenance
   Spousal maintenance is not automatic or indefinite. It is granted only if you can prove genuine financial need.
2. Assets Excluded in an Antenuptial Contract
   If you signed an antenuptial contract excluding certain assets, you cannot claim those.
3. Unlawful Claims on Family Businesses
   You cannot demand a share of a business owned solely by the working spouse unless it forms part of the joint estate or accrual.
4. Unreasonable Custody Claims
   The court may deny custody if it believes you cannot provide a stable environment for the children.
5. Fraudulent Claims for Maintenance or Assets
   If you attempt to hide assets, provide false information, or misuse maintenance payments, the court may penalise you severely.

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What Lawyers Advise

Lawyers often advise non-working spouses never to refuse mediation or negotiate unfair demands during a divorce. This is because mediation allows for amicable resolutions, and making unreasonable claims may weaken your case.

Additionally, you are not entitled to maintenance or assets that you fraudulently claim. For example, attempting to exaggerate expenses or hiding the fact that you have alternative income sources could result in the court rejecting your maintenance application entirely.

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Common Misconceptions

Many non-working spouses mistakenly believe they are entitled to automatic spousal maintenance, which has been widely publicised by misleading online articles. However, maintenance is not guaranteed—it depends on the court’s assessment of financial need and the working spouse’s ability to pay.

For example, in the widely discussed Msweli v Msweli (2020) case, the court denied permanent spousal maintenance, citing the non-working spouse’s potential to earn an income in the future.

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As a non-working spouse, you have rights that are legally recognised in South Africa. However, the court carefully considers fairness, your financial needs, and your contributions during the marriage. Consult a qualified family lawyer to ensure your entitlements are protected. Avoid falling into common misconceptions and focus on presenting an honest, well-prepared case.