The Facts: A Long Marriage, a R9.1 Million Settlement and a Maintenance Claim with No Tender
The parties in H.L.B v J.B were married on 22 August 1998, out of community of property and subject to the accrual system. Two children were born of the marriage, both of whom had attained majority by the time of trial, although the son, a student at Stellenbosch University, remained dependent. Mrs B left the matrimonial home on 30 March 2021 and instituted the divorce action on 9 April 2021. She claimed maintenance for herself in terms of section 7(2) of the Divorce Act 70 of 1979 in the amount of R60 000.00 per month. Mr B, a 60 year old independent certified financial planner who operated his practice through a trust structure, made no tender at all, not even of rehabilitative maintenance, and in his plea denied any entitlement to the relief sought.
The interim position was governed by rule 43. On 3 June 2021 the court ordered Mr B to pay Mrs B R29 384.00 per month, together with identified expenses, a rental deposit and a R40 000.00 contribution to costs. On 12 June 2023 the order was varied in terms of rule 43(6), increasing the cash component to R43 757.08 per month, adding policy premiums and a further R50 000.00 contribution to costs.
On 29 July 2025 the parties settled the proprietary claims, expressly reserving Mrs B’s personal maintenance claim. Clause 5 of the settlement agreement awarded her assets to the value of R9 123 423.00, comprising two sectional title rental units in The Lodge, Melkbosstrand, valued at R1 000 000.00, cash payments of R2 000 000.00 and R228 899.00, and the assignment of R5 894 524.00 of Mr B’s pension interest in the Glacier Preservation Fund. Significantly, the accrual calculation included the assets of the three trusts associated with Mr B, totalling R9 800 000.00, with the result that Mrs B received some R4 900 000.00 more than she would otherwise have obtained, since she had neither joined the trusts nor sought relief against their assets.
By the time the trial commenced before Anderssen AJ, the claims relating to the children had fallen away and only the section 7(2) claim and costs remained. Mrs B, aged 56, holds a Grade 12 certificate with additional secretarial, travel and marketing qualifications. She had worked in her husband’s brokerage, Finpremier, as an administrator and bookkeeper, earning R15 000.00 per month on a cost to company package of R21 242.00, a package both industrial psychologists agreed exceeded her market value. She had not worked since April 2021 and had requalified as a home based carer, a vocation she discovered while caring for her elderly mother. Although she had conceded in her reply to a request for trial particulars that a reasonable period for maintenance would be until her 65th birthday, she persisted at the hearing with a claim for lifelong maintenance.
No Right, Only a Discretion: The Section 7(2) Framework
The judgment contains a careful restatement of the principles governing post divorce spousal maintenance. The starting point is that at common law neither spouse has a right to maintenance upon divorce. The duty of support is an incident of the matrimonial relationship and terminates with it, as confirmed in Kruger NO v Goss and Another 2010 (2) SA 507 (SCA). The statute did not change this. Section 7(2) empowers the court, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, their ages, the duration of the marriage, the standard of living prior to the divorce, relevant conduct and any other factor the court considers should be taken into account, to make an order which it finds just, including no order at all. As Satchwell J held in Botha v Botha 2009 (3) SA 89 (W), the discretionary word ‘may’ confirms that the common law position survives, endorsing the dictum in the earlier Portinho judgment that ‘The Court has a discretion, the plaintiff has no right.’ The Botha judgment also confirms that this position is consonant with the rights to equality and dignity in sections 9 and 10 of the Constitution.
Maintenance is only awarded where a need is established on the facts. In EH v SH 2012 (4) SA 164 (SCA) and AV v CV 2011 (6) SA 189 (KZP) it was made clear that a claimant must provide a factual basis for an award before quantum and duration are even reached. It is not sufficient for a claimant to show that her current earnings cannot sustain the marital standard of living and that the other spouse can afford to fund it. That approach, the court observed with reference to Botha, amounts to no more than a statement of ‘I need and you can pay’.
The judgment distinguishes lifelong maintenance orders, running until death or remarriage, from rehabilitative orders granted for a shorter period. Rehabilitative maintenance serves spouses who were disadvantaged by the marriage, typically those who devoted themselves to the household and children or who, as in Rousalis v Rousalis 1980 (3) SA 446 (C), supported their husbands in their businesses. Its goal is the financial self sufficiency of the claimant, as this division held in Kooverjee v Kooverjee 2006 (6) SA 127 (C), a judgment which also cautions that the right to equality must be applied with recognition of the de facto roles of women in society and the effect of the division of family roles on earning capacity. At the same time, the court in Kroon v Kroon 1986 (4) SA 616 (E) warned that courts do not distribute maintenance with any degree of liberality to women who can and ought to work after divorce. Pommerel v Pommerel 1990 (1) SA 998 (E) adds the important qualification that actual ability to support oneself is a very different matter from notional employability, and that the reasonableness of a decision not to work must be assessed against age, health, qualifications, employment history, the duration of the marriage, the marital standard of living and child care commitments.
Finally, section 7(2) expressly permits regard to an order under section 7(3), which the Appellate Division in Beaumont v Beaumont 1987 (1) SA 967 (A) linked to the clean break concept: where the capital settlement is large enough to render a spouse self supporting, a maintenance order may be unnecessary altogether. The structured enquiry, per Buttner v Buttner 2006 (3) SA 23 (SCA), is threefold: whether a need for maintenance exists and between whom, the amount, and the period, with the respondent’s ability to pay remaining a fundamental requirement.
Partisan Experts, Potential Earnings and the Balancing of Means and Needs
Five witnesses testified in addition to the parties, and the judgment is a textbook illustration of how expert evidence is weighed. An expert must appreciably assist the court, must reason from established facts, and must remain independent, as required by Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3) SA 352 (A) and Michael & Another v Linksfield Clinic (Pty) Ltd & Another 2001 (3) SA 1188 (SCA). Objectivity may be questioned where the witness shows bias, has an interest in the outcome, advocates for the party who retained him or selectively examines only the evidence supporting his conclusions, criteria summarised in PriceWaterhouseCoopers Inc and Others v National Potato Co-operative Ltd and Another [2015] 2 All SA 403 (SCA), and the evidence of a partisan expert is of little value, as held in Stock v Stock 1981 (3) SA 1280 (A).
Measured against these standards, the evidence of Mrs B’s financial advisor failed. He was her advisor, her landlord and her friend, he relied on outdated drawdown research favouring her case while ignoring more recent studies, he omitted her own assets from his calculations, and he claimed a degree when he held a diploma, which attracted the caution expressed in the Schneider NO and Another v AA and Another judgment that persons claiming qualifications they do not possess must be treated with circumspection. He championed her cause, and his evidence was rejected. By contrast the actuary called by Mr B was accepted: his calculations showed that a living annuity drawdown of 6,6 percent, increasing with inflation, would sustain Mrs B’s capital for her anticipated lifetime of 86 years.
The industrial psychologists were both found to be independent, and their ranges largely overlapped. The court found that Mrs B has an income earning capacity of at least R15 000.00 per month in a small business environment, and allowed her twelve months to re enter the labour market. The judgment contains a valuable analysis of the statutory concept: earning capacity is potential, determined by skills, education, training, experience and market conditions, and differs from actual income. Where potential exceeds actual earnings, the court is bound to consider the potential. Mrs B’s dignity entitled her to pursue the lower paid vocation of home based care that inspired her, but Mr B could not be expected to fund the difference between her chosen earnings and her capacity.
On means, the court found that the two rental units would yield R10 200.00 gross per month and that Mrs B’s annuity capital, enlarged by her own retirement annuities to R6 961 786.54, would yield R38 289.83 gross per month at a 6,6 percent drawdown. The cash payments were not treated as income producing, since she was entitled to buy a home rather than remain exposed to the vagaries of leases and landlords, and the surrender values of her policies were excluded. Together with attributed employment income, her gross earning capacity came to R63 489.83, or R47 215.00 net. Her claimed expenses of R99 382.14 were pruned, item by item, to R59 008.00, the court rejecting unexplained increases between two inconsistent expense lists, a vehicle upgrade and expenses relating to the adult daughter in England. On the other side, Mr B’s earning capacity of R136 637.00 gross included his salary, bonuses, historic commission income, fringe benefits paid through the corporate trustee and the trust surplus, which the court attributed to him because he acknowledged being the sole source of the trusts’ income. His net earnings of R92 916.07 fell short of his own anticipated expenses of R110 811.00, which included a new bond of R32 697.00 per month to fund the capital settlement. Neither party, the court observed, can maintain the marital lifestyle across two households.
The Clean Break, the True Cost of Rule 43 and a Timed Award
Two considerations entered the analysis as ‘any other factor’. The first was the clean break principle. Mr B had procured the inclusion of the trusts’ assets in the accrual calculation precisely to achieve finality, and section 7(1) read with section 8(1) of the Divorce Act incorporates an implied waiver of any right to vary an agreed division of assets, a policy which the Full Court in PL v YL 2013 (6) SA 28 (ECG) explained as allowing parties to put the past behind them and begin a new life not overshadowed by the broken relationship.
The second was the effect of the rule 43 orders, and this is where the judgment will be most frequently cited. The interim orders obliged Mr B to pay roughly R61 259.00 and later R75 632.00 per month, totalling some R4.19 million over the five year lifespan of the litigation. To fund them he liquidated investments of about R1 760 000.00 and fell into arrears of about R910 000.00 with the South African Revenue Service, which in turn eroded the very accrual Mrs B shared in. The court drew on the Constitutional Court’s observation in S v S and Another 2019 (6) SA 1 (CC) that rule 43 was not designed to resolve issues between divorce litigants for an extended period, on the warning of Spilg J in TS v TS 2018 (3) SA 572 (GJ) that uninformed interim orders may debilitate one party’s income earning capacity at the expense of the other, and on the suggestion of Rogers J in CT v MT and Others 2020 (3) SA 409 (WCC) that interim orders may be granted for a fixed period rather than pendente lite. Anderssen AJ pointed out that Mrs B, who had worked throughout the marriage, testified that she did not seek employment precisely because interim maintenance was flowing, and suggested that a timed rule 43 order is an obvious solution in such circumstances, as has recently been done in this division in TR v RER [2026] ZAWCHC 530 and HL v BL [2026] ZAWCHC 350. A spouse prejudiced by delay retains the remedy of a variation under rule 43(6), as both CT v MT and ALG v LLG [2020] ZAWCHC 83 recognise. To the extent that a rule 43 order has caused financial prejudice during the litigation, that prejudice is a factor in deciding what maintenance order is just.
The conclusion followed from the facts. After five years of substantial interim maintenance and a capital settlement enlarged by the trusts’ assets, it would not be just to expect Mr B to pay maintenance after divorce. But justice cuts both ways: the settlement assets would not reach Mrs B immediately, since the prescribed timelines in section 37D(4)(b) of the Pension Funds Act 24 of 1956 meant she would wait about eight months for the pension interest, and she needed twelve months to meet her earning capacity. The court therefore ordered rehabilitative maintenance for twelve months: R46 931.61 per month for eight months from 1 November 2026, reducing to R15 000.00 should the capital flow earlier, and thereafter R15 000.00 per month for four months, with the rule 43(6) order remaining in force until 31 October 2026. Mrs B, who achieved only partial success after persisting in a lifelong claim she had herself conceded away in her trial particulars, received half her party and party costs on Scale C, over and above the R90 000.00 in rule 43 contributions, the court noting that the R600 000.00 provision for legal fees in Mr B’s accrual calculation meant she had already contributed R300 000.00 indirectly to his costs. She bore the wasted costs of a postponement she had sought.
Questions and Answers
Does a spouse have a right to maintenance after divorce in South African law?
No. At common law the duty of support ends when the marriage ends, and section 7(2) of the Divorce Act did not create a right. The court has a discretion to make an order it finds just, which includes making no award at all. The claimant must persuade the court to exercise the discretion in her favour.
What factors must the court consider under section 7(2)?
The existing or prospective means of each party, their respective earning capacities, financial needs and obligations, their ages, the duration of the marriage, the standard of living before divorce, conduct insofar as it is relevant to the breakdown, an order under section 7(3), and any other factor the court believes should be taken into account. The listed factors are not a closed list.
What is the structured enquiry a court must undertake?
Following the Supreme Court of Appeal in the Buttner case, the court decides first whether a need for maintenance exists and by whom and to whom it is to be paid, secondly the amount, and thirdly the period. The ability of the other spouse to pay remains a fundamental requirement for any award.
What is the difference between lifelong and rehabilitative maintenance?
A lifelong order endures until the death or remarriage of the recipient. A rehabilitative order is granted for a defined shorter period, sufficient to tide the claimant over while training, retraining or re entering the labour market, with the ultimate goal of financial self sufficiency.
When will a court grant rehabilitative maintenance?
Where a spouse has been disadvantaged by the marriage, typically through years of full time devotion to the household and children, through compromising a career, or through supporting the other spouse in his business, and needs to be restored to effective and profitable participation in economic life.
What does earning capacity mean, and how does it differ from actual income?
Earning capacity is a person’s potential to generate income based on skills, education, training, experience and prevailing market conditions. Actual income is what the person in fact earns. Section 7(2) directs the court to earning capacity, so where potential exceeds actual or intended earnings the court must consider the potential.
May a spouse choose a lower paying career after divorce?
Yes. The right to dignity does not permit the other spouse or the court to prescribe an employment path. But the choice has a price: the other spouse cannot be expected to fund the difference between the chosen lower earnings and the claimant’s true earning capacity.
Can a claimant rely on the standard of living enjoyed during the marriage?
Only as one factor among many. A claimant cannot automatically expect the post divorce lifestyle to match the marital one, and a claim amounting to ‘I need and you can pay’ is not consistent with section 7(2). In most cases, as here, neither household can replicate the former standard once the income must stretch across two homes.
How is the notional employability of a claimant treated?
With caution. The Pommerel case distinguishes between a spouse who is in fact able to support herself and one who is merely notionally employable. Where it is alleged that a claimant should work, the reasonableness of the decision not to work is tested against age, health, qualifications, employment history, the length of the marriage, the marital standard of living and care commitments.
What role does the clean break principle play?
The clean break principle aims at the complete termination of financial dependence of the one spouse on the other as soon as possible. Through the interplay of sections 7(2) and 7(3), a substantial capital settlement may render ongoing maintenance unnecessary, and section 7(1) read with section 8(1) precludes any later variation of an agreed division of assets.
Can trust assets influence a maintenance determination?
They did here in two ways. The inclusion of the trusts’ assets in the accrual calculation enlarged the capital settlement and supported the clean break. And in assessing the payer’s earning capacity, the court attributed the trust surplus and fringe benefits to Mr B personally because he was the sole source of the trusts’ income.
When will an expert witness’s evidence be rejected?
Where the expert lacks independence, has an interest in the outcome, advocates the cause of the party who retained him, or selectively examines only supportive evidence. The financial advisor in this case displayed all of these features, and the claim to a qualification he did not hold compounded the court’s circumspection.
How did the rule 43 orders affect the final maintenance award?
Profoundly. The interim orders forced the payer to liquidate investments and incur a substantial tax debt, which diminished both estates. The court held that financial prejudice caused by a rule 43 order during the litigation is a factor a court may weigh, as ‘any other factor’ under section 7(2), in deciding what final award is just.
Can rule 43 relief be limited in duration?
Yes. Rule 43 orders need not operate pendente lite for an indeterminate period. They may be granted for a fixed term, affording the recipient time to find employment or improve her circumstances, with the safety net of a renewed or varied application under rule 43(6) if the divorce is delayed or circumstances change.
Why did the maintenance order run for only twelve months?
Because the award matched the gap it had to bridge. The pension interest assignment would take roughly eight months to reach the claimant under section 37D(4)(b) of the Pension Funds Act, she needed time to restructure her policies, and the court found she required twelve months to re enter the labour market at her earning capacity. Thereafter the clean break prevailed.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator, Court Day Calculator and Accrual Calculator.
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