Spousal maintenance
is the term used to describe the financial assistance given by one spouse to the other after a divorce in order to help the less fortunate spouse maintain their level of life and satisfy their basic necessities. Spousal maintenance in South Africa can be lifelong maintenance, which entails ongoing financial support for the ex-spouse’s lifetime, alternatively until their remarriage, or, in some cases, cohabitation with a new partner, or rehabilitative maintenance, which is temporary support intended to help the recipient spouse recover financially after the divorce. The form of maintenance and the need to pay it vary depending on the particulars of each instance.
In M.M.L V. J.J.L, the court had to determine whether an ex-spouse could legitimately stop providing lifelong spousal support. The ex-husband requested a termination of his duty to provide his ex-wife with lifelong maintenance on the grounds that she was now living with a new partner. The dispute centered around a settlement agreement that the parties had agreed to during their divorce. It contained a suspensive condition that required “the defendant (ex- husband) to provide maintenance to the plaintiff (ex-wife) in the amount of R16 000 per month until her death, remarriage, or cohabitation with another man, whichever event occurs first,” The ex-husband claimed that because his ex-wife had moved in with a new partner, the suspensive condition had been met and she was no longer entitled to support.
The court explained the suspensive clause in Drummond v. Drummond as follows:
“this clause was obviously designed to provide for the contingency that the appellant might establish a permanent relationship with some other man and enjoy the advantage of being supported by him, without attracting the consequences of a marriage and the resultant cessation of any liability for maintenance on the part of the respondent. As to the meaning of the phrase ‘living together as man and wife,’ the judge accepted that ‘the basic components of a marital relationship except for the formality of marriage,’ and that the factors to consider are firstly, living under the same roof, secondly establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.”
The ex-wife and her new partner had been together for about 7 years at the time of the hearing in the M.M.L V. J.J.L case. When the partner visited at the ex-wife’s house, they had the same room and bed. Even though the new partner’s place of employment was in a distant province, he still visited the ex-wife on the weekends and on holidays. He helped with expenses on his visits by making purchases, paying for gas, and bringing the ex-wife and her minor child out to supper. Joint holidays were also paid for by the new partner, but not always in whole. Additionally, he used a car that the ex-husband had paid for, and he had a number of things stored in the ex-wife’s house. There was a laundry line where he frequently hung up his clothes.
The court came to the conclusion that the ex-wife and her new partner had an intimate relationship after taking these circumstances into account. The court also found that the sole reason the new partner did not spend the week at the ex-wife’s house was due to his employment in a different region, based on the possibilities. Further evidence that the new partner and the ex-wife shared a roof came from the storage of the new partner’s caravan, braai, canopies and regular hanging of his clothing on the washing line.