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Refund of divorce maintenance


Application for the refund of a portion of maintenance paid on the grounds of unjustified enrichment arising from a maintenance escalation clause in a divorce order – Erasmus v Bowman (2237/2013) [2013] ZAWCHC 130 (11 September 2013)

The matter was recently heard in the Cape High Court. The applicant applied for maintenance to be paid back to him in the sum of R40 976 on the basis of unjustified enrichment for maintenance which he alleged to have paid to the respondent for the period of April 2007 to November 2012. The South Gauteng High Court had granted the decree of divorce on 9 July 2004. 

divorce maintenance payment

There had been two minor children born of the marriage. In terms of the settlement agreement entered into between the parties, the parties had agreed that maintenance be paid in respect of each minor child in the amount of R500 per month per child, commencing on 1 April 2004. Such maintenance was to increase according to the consumer price index.

A subsequent order was made by the Bellville Magistrate’s Court on 10 September 2007, whereby maintenance was increased to R1500 per month per child. A so-called “escalation clause” is a clause in a court order in terms of which maintenance must be increased by a certain amount each year. This so-called “escalation clause” can take the form of either the maintenance being increased according to the consumer price index, or there can be a fixed percentage increase, for example the maintenance to be increased by 5% or 10% per year.

The order granted in the Bellville Magistrate’s Court, did not have an escalation clause, while the order which was first made in the South Gauteng High Court did have an escalation clause. The question now arose as to whether the applicant should have increased the maintenance as per the first court order, or whether he had no legal duty to do so because the order granted in the Bellville Magistrate’s Court did not have an escalation clause. 

The applicant had paid yearly increases from April 2007 to November 2012, totalling R40 976. He now alleged that he had been pressurized into making this overpayment by the respondent’s attorneys in April 2008. The respondent claimed that it was part of the negotiations at the Bellville Magistrate’s Court that the increased amount of maintenance in terms of the court order would escalate annually in accordance with inflation. 

The Court in the end found that there was no basis for finding that the respondent was unjustifiably enriched and that there was no reason why the Court should deviate from ordering costs on a High Court scale. In coming to its conclusion the Court found that the applicant should place sufficient factors before the court to justify a finding that the error that gave rise to the payment was excusable. The Court found that the applicant’s argument that he had made a reasonable error was not supported by other factors. 

In my personal opinion I believe that the decision above was the correct one. In order to succeed with a claim for enrichment one must prove that the other party’s estate has been enriched to the extent that there has been an increase in assets. In this particularly case there had not been an increase in assets, but the money that had been paid to the respondent had been used towards the maintenance of the children. Furthermore, if the oral agreement to pay the yearly increases had occurred as it had in this case, the applicant should not be able to claim enrichment.

article written by Cape Town divorce attorney, Peter M Baker


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