Is There a Need for Legislative Recognition of Rehabilitative Maintenance in South Africa? Lessons from Specified States of the United States of America

Abstract

This paper traces the development of rehabilitative maintenance in South Africa. It illustrates that while there is no statutory provision dealing with rehabilitative maintenance in the country, courts are nonetheless, willing to make maintenance orders for limited periods. This paper shows that the criteria that courts use to grant this type of maintenance is not clear, making it difficult for legal practitioners to predict their clients’ cases. Courts have wide discretion when adjudicating rehabilitative maintenance disputes. They can order specific amount of maintenance to be paid to the maintenance seeking spouse for a particular period without outlining the basis for their decisions. While rehabilitative maintenance is relatively new in South Africa, it is nonetheless, well established and legislated in some of the States within the United States of America. This paper argues that rehabilitative maintenance should be legislated in South Africa in order to provide adequate guidance to the courts. Further, that failure to legislate rehabilitative maintenance would lead to inconsistent approaches being developed by the courts. In particular, it recommends the amendments of the Divorce Act in order to make provision for rehabilitative maintenance.