Published date: 2012-07-11
Author: Judy Wilkins

The payment of rehabilitative maintenance has come about as a result of the “clean break” principle favoured by our Courts. The Courts feel that it is better for two people to separate completely after divorce and not be tied to one another by spousal maintenance. Our Courts are therefore reluctant to award spousal maintenance for life unless the spouse is ill, incapacitated or too old to work.

However a number of women are unemployed or work on a part-time basis and are therefore unable to support themselves financially. They are dependent on their spouse for income. Rehabilitative maintenance is to enable a spouse time to qualify him/herself in order to no longer be dependent on the other party. The purpose of rehabilitative maintenance is to give financial assistance for a specific time and is therefore of a temporary nature.

The time frame will vary from case to case and will depend on the history and circumstances of a particular case. There have been orders handed down for a spouse to render assistance from three months in some cases to 10 years in others.

Obviously not all spouses are entitled to rehabilitative maintenance. It is only those who are financially dependent on the other party. It gives time for example to become computer literate and enter the workplace.

There will be a greater need for rehabilitative maintenance where the parties are married out of community of property excluding the accrual system. In this situation where the one party has no assets to utilise and is financially dependent on the other party, rehabilitative maintenance will assist that party to get out into the working environment and qualify themselves if necessary.

The Supreme Court of Appeal has recently found that a person’s estate is not bound by an order for rehabilitative maintenance. If you are divorcing an older spouse and are entitled to rehabilitative maintenance then rather ask for a lump sum payment as opposed to monthly instalments. You can however specifically bind your estate to pay the rehabilitative maintenance in a settlement agreement.

In deciding whether a person will be entitled to rehabilitative maintenance the Court may take the following into account:
1. The existing or prospective means and earning capacities of the parties;
2. The financial needs and obligations of the parties;
3. The age of the parties;
4. The duration of the marriage;
5. The standard of living prior to the divorce;
6. An order for the division of the assets;
7. Any other factors the Court may deem relevant.