How to find a divorce lawyer in Cape Town, South Africa

Divorce & Future medical expenses

An interesting decision which came up recently in our case law related to the abovementioned topic was that of Thomson v Thomson 2010 (3) SA 211 (W).

In the above case the parties had been divorced in 1974, and they were both now elderly. The man was in his early eighties, and his ex-wife was just four years younger than him. At the time of divorce, the man had agreed to pay for all future medical expenses for his ex-wife.

The wife had never claimed any medical expenses from her ex- husband since the time of the divorce. There was no need for her to claim from her husband, as she was employed, and was receiving suitable medical benefits from her employer, and was paying for the medical fund out of her own pocket.

In 1996 the woman had a heart bypass operation and lost her job. Quite a while after the operation she claimed a certain amount of money from her ex-husband. The ex-husband never responded to her request for payment. The lady then sued her ex-husband for approximately R80 000, which included all the contributions which she had made to her medical aid fund.

The court awarded in favour of the lady. One of the man’s defences was that the claim had prescribed by virtue of the fact that a considerable amount of time had lapsed before his ex-wife had actually instituted action against him. The court found that the claim had not prescribed, and that the man was liable for the medical expenses in terms of the divorce order.

The man then took the matter on appeal. The court found that the first court had not taken into account all relevant factors in coming to their decision. The man for example only earned a monthly income of R4000, and their was no way he could afford to pay the R80 000 which he was being sued for. The court did however state that medical expenses do form part of the duty of support.

In the end the matter was referred by the high court back to the maintenance court. The court found that the maintenance court is the appropriate court to hear the matter, as the maintenance court can even vary or discharge a maintenance order. The high court is very often reluctant to hear a maintenance matter, as there are proper officials in the maintenance court who are more than equipped to hear these types of matters.

In my opinion the referral of the matter back to the maintenance court was probably the correct decision. It is also very expensive for parties to litigate in the higher court these days. In my own personal practise I have on a few occasions successfully managed to vary orders made by the high court in the maintenance court.

What is also quite interesting about this case is that it also shows how the concept of prescription can also be a risk in post -divorce matters. According to law if you do not institute an action within a certain amount of time, your claim falls away, and will be seen in the eyes of the law to have prescribed. One must therefore not leave it too late before instituting action.

The above case also shows once again how important it is in a divorce matter to aim for a “clean- break” type of settlement rather than to have to pay your ex for an indefinite period of time. A lump sum payment is the ideal way to settle a divorce, even though that is not always possible.


married overseas annulmentreasons for divorce