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The Law Desk - Paying Spousal Maintenance until Death or Remarriage

The Law Desk - Paying Spousal Maintenance until Death or Remarriage

Author: Fawzia Khan
Date: 2023-05-29

A man who was ordered [in terms of his divorce decree] to pay his ex-wife maintenance until she dies or upon her re-marriage or cohabitation with another man, brought an application to court in 2022 to discharge his maintenance obligation to his ex-wife, saying that as she was cohabiting with another man since 2016, he was no longer required to pay her maintenance.

The man and his ex-wife obtained a divorce in 2016 and signed a divorce settlement agreement in which they agreed that he would pay her maintenance of R16 000 per month, up until her death, remarriage or cohabitation with another man, whichever event occurs first.

Two months after their divorce in 2016 the ex-wife became involved in a romantic relationship with C. Based on the evidence before it that the ex-wife and C were in romantic intimate relationship and the court was satisfied that there was sufficient evidence to discharge the man's obligation to pay his ex-wife maintenance. The court found that the ex-wife was cohabiting with another man [C] and that this "triggered the suspensive condition terminating her continued maintenance."

The ex-wife however denied that she and C were cohabiting as man and wife as contemplated in her divorce settlement agreement or that C was maintaining and contributing towards a joint household.

She appealed that decision. In delivering its judgment on appeal in May 2023, the court looked at the definition of living as man and wife and held that this term included living under the same roof, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.

It also referred to the evidence which found that C worked in Gauteng during the week and that he spent his weekends, holidays, and free time with the woman at her residence in Bethlehem.

During the Covid-19 national lockdown, C spent two weeks at the woman's residence and had various items of his belongings, including his Venter trailer, his braai stands, and various canopies stored there.

The court heard that C also contributed towards "buying stuff" for the house including purchasing petrol for the woman, buying household items for the woman, and bought items such as a cell phone for the woman's minor child and they went on vacations together to destinations such as Mozambique.

Ultimately all the evidence pointed to the fact that C was maintaining and contributing towards the joint household of the ex-wife and the minor child. After weighing up the evidence and testing the versions of both parties, the court found the version of the man to be reasonably probably true. It held that there was no need for the man to continue to pay maintenance to his ex and dismissed the woman's appeal with costs.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving YOU the Power of Attorney. Email fawzia@thelawdek.co.za or call 031-5025670 for legal assistance at competitive rates.