A common clause which is included in a divorce settlement agreement which binds the estate of the party who should pay maintenance reads as follows:
“BINDING OF PLAINTIFF’S ESTATE
The Plaintiff’s estate shall be bound in respect of any obligations upon him in terms of this Agreement which may be unfulfilled as at the date of his death.“
Very often when I draft a divorce settlement agreement the parties ask me what this clause means. It basically means that should the party who must pay maintenance or has to fulfill any other obligations in terms of the divorce settlement agreement, die, then his/her estate will have to carry on paying the maintenance or fulfill any other obligations, before the estate is wound up.
It is useful to have this clause inserted in the agreement if you are the party in the divorce who is claiming maintenance.
We recently had a case where X divorced his first wife. This clause was included in the agreement. A few months after his divorce X married a second wife and he had a Will drawn up where he left all of his assets to his second wife. The children whom X had with his first wife were still minors. Even though X excluded those children in his Will, he had included the “binding on estate clause” in his divorce order with his first wife. X’s ex-wife could therefore succeed in her claim for a lump sum of maintenance against X’s estate in respect of maintenance for the minor children, based on the abovementioned clause.
The abovementioned example is also an example of why when drafting a Will after a divorce, one should ensure that the Will’s terms are the same as those in your divorce settlement agreement. This would prevent any possible claims from being lodged against your estate after your death.
When drafting a divorce settlement agreement, it would be wise for a party to protect his/her interests by insisting on the abovementioned clause. This would be your insurance to protect you and your children in the event of your spouse dying.
This article was written by Cape Town divorce law specialist, Peter M Baker
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