Maintenance of the Surviving Spouse

In South Africa, there is a legislation to protect the right of the surviving spouse, minor children, couples in Muslim marriages in terms of Islamic Law, same sex unions and unmarried couples living in co-habitation arrangement can claim from the Deceased Estate. It however should be kept in mind that there is no ‘automatic duty of support’; and that each case will be judged on its own merits. The duty to support is usually in the form of spousal maintenance and may include the provision of food, accommodation, clothing, and general necessities that one partner/ spouse in the relationship may have been able to contribute the other. This duty to support continues throughout the relationship until terminated by either divorce or death.

The promulgation of the Maintenance of Surviving Spouses Act 27 of 1990 provides
for the surviving spouse to claim from the estate of the deceased spouse. This claim only applies to the spouse who was married at the time of death of the deceased. The factors to be taken into account before such claim can be granted are, inter alia the amount available in the deceased estate for distribution, earning capacity, the standard of living of the surviving spouse during the subsistence of the marriage and the age

An application for maintenance is made to the Master from a Deceased estate and such application is not taken lightly, moreover, awards in maintenance matters are not easily granted. Awards will include periodical payments, a lump sum payment, transfer of property, giving right of use of assets to applicant, and variation of the award made through a will or variation of award made where there is no Will. It must therefore be noted that despite there being a Will, an award of maintenance may change what will be awarded in terms of the Will and further where there is no Will, the intestate laws relating to who will inherit may also be varied so as to make provision for maintenance.

This means that assets left by a deceased person can partly be used for maintenance purposes.

Duty to support by divorce

It should be noted that no partner/ spouse has an automatic right to spousal maintenance. The provision for maintenance from one partner/ spouse to another after
divorce is at the discretion of the Court when granting the decree of divorce. This must however be specifically prayed for in the pleadings issued.

Support for minor children

In the case of Du Toit NO v Errol Thomas NO (635/15) [ 2016ZA SCA 94] June 2016), Maintenance Court Jurisdiction – there was a claim for maintenance on behalf of minor child against an executor of her deceased father’s estate – executor participating in the proceedings and not objecting to the jurisdiction of the maintenance court – thereafter challenging jurisdiction on review to the high court – refusing to pay maintenance for child on an unduly technical basis – executor’s conduct unconscionable – ordered to pay costs de bonis propriis on attorney and client scale.

The Maintenance of Surviving Spouse Act 27 of 1990 has given Rights to the Surviving Spouse and Minors to ensure that they continue to enjoy a life-style they had whilst the spouse was alive.

This article is a general information sheet and should not be used or relied upon 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)