• Kaplan Blumberg

Let’s Talk Maintenance Claims: What Happens After Death Of The Payer?

Maintenance claims rank behind those of creditors upon the death of the person responsible for paying maintenance in terms of the relevant order. Maintenance claims do however rank above the claims of heirs in respect of inheritances. This, despite a testator’s freedom of testation.


There are no hard and fast rules when dealing with maintenance and the death of the payer. Each matter must be dealt with based on the particular circumstances.


Maintenance in respect of minor children:


With child maintenance, the burden is divided amongst the parents and the payment of maintenance is determined with due regard to their respective means, meaning that each parent will typically pay a pro rata contribution depending on their income, as well as the extent of any assets they may possess. The death of one of the parents does not absolve his/her from this obligation, which often accrues to his/her estate upon death.

Even in instances where a minor inherits from the estate, there may be a further claim if the maintenance is insufficient. This obligation arises in respect of children born from a marriage, illegitimate children as well as adopted children.


What happens when your ex-spouse dies – do you lose your maintenance claim as awarded in terms of section 7 or does the obligation devolve onto his/her deceased estate?


Sections 7(1) and 7(2) of the Divorce Act No. 70 of 1979 read as follows:


"7(1) A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.


7(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the breakdown of the marriage, an order in terms of subsection (3) and any other factor which, in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur."


The statutory exception to section 7 above alters the common law position in that the duty to support terminates on divorce, not death, unless specifically agreed otherwise. The consideration thus being whether the order was granted in terms of section 7(1), being an agreement between the parties which was subsequently made an order of court, or section 7(2), being an order for rehabilitative maintenance.


Section 7(2) places restrictions on the Court in that it may not grant an order for payment of maintenance which survives the death of the party paying maintenance. This position has been confirmed in the matter of Kruger NO v Goss and another [2010] 1 All SA 422 (SCA). The first respondent had been married out of community of property with the exclusion of the accrual system. Upon termination of her marriage by divorce three years later, the respondent had no capital claim against her former husband and had restricted her claim to one for rehabilitative maintenance in terms of section 7(2) of the Divorce Act. Her ex-spouse paid rehabilitative maintenance to her until August 2006. He passed away in September 2006, having paid 33 of the envisaged 57 monthly instalments. His son, the appellant, was appointed executor of the deceased estate. The first respondent lodged a claim against the deceased estate for the remainder of the rehabilitative maintenance, which she considered due to her, but the appellant rejected the claim. As a result, she approached the High Court for an order declaring that the estate was liable to pay her rehabilitative maintenance, and for payment of the amount allegedly due to her, together with interest thereon. The appeal was noted against the upholding of the claim - the question was thus whether an order for rehabilitative maintenance (pursuant to a decree of divorce) is enforceable by a spouse against her former husband's deceased estate.


The Court held that the power to grant maintenance is confined, not to the duration of the life of the spouse liable to pay, but rather to the life of the beneficiary spouse. However, one must not look at section 7(2) in isolation. In terms of the common law, the duty of support which spouses owe each other, and consequently the liability for maintenance, are incidents of the matrimonial relationship. Termination of the relationship by death brings that duty to an end.


The Maintenance of Surviving Spouses Act 27 of 1990 ("the MSSA") allows widows and widowers, in specified circumstances, to be maintained from the estates of their late spouses. This was limited legislative intervention, altering the common law to the extent set out therein. The common law rule remained otherwise untouched.


The Court found that it could hardly be argued that, before the MSSA came into being, divorced persons, whose erstwhile spouses had died, were in a more favourable position than widowed ones, giving them rights against the estates of people no longer married to them at the time of death which widowed spouses did not enjoy against estates of those to whom they were then still married. Section 7(2) of the Divorce Act therefore cannot be construed so as to alter the common law position.


In the more recent decision of S A v J A and Others (7531/2020) [2020] ZAWCHC 155 (10 November 2020), a different question arose for consideration. Are maintenance matters that form part of a consent paper (settlement agreement), and incorporated in a divorce order, part of the “judgment” and hence susceptible to prescription only after 30 years? Or is this component of the divorce order an ordinary debt that prescribes after 3 years, because of the fact that it is capable of being varied and is therefore not a final judgment? In the present matter, the spouse claimed substantial arrears from her ex-husband, shortly after he had a windfall, 17 years after their divorce order.


In this matter it was declared that the maintenance obligations contained in the consent paper (settlement agreement) was subject to a 30-year period as prescribed in section 11(a)(ii) of the Prescription Act 68 of 1969.


For assistance or more information, contact our Family Law Department on 041 363 6044 or info@kaplans.co.za to arrange a consultation.




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