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Post-divorce maintenance

Is an agreement to pay maintenance to a wife for 10 years post-divorce still valid if she remarries? Van Der Vyfer v Du Toit 2004 (4) SA 420

The above question came up in the case of Van Der Vyfer v Du Toit.

The parties had been married out of community of property.  In terms of the divorce settlement the man had donated to the woman a Honda Ballade motor vehicle.

Further terms of the settlement were that the man was to pay R3500 per month to the woman for 10 years post-divorce with an escalation clause and the man was to pay the woman R85 000 within 30 days of signing the deed of settlement.  The payments of R3500 per month were not specifically labelled as maintenance payments.

Within the 10 year period post-divorce the woman had however remarried.  The man then approached the court for an order declaring that the payments were in fact maintenance payments and that his obligation to continue making those maintenance payments to his ex-wife had ceased when she remarried.

The court looked at the golden rule of interpretation.  This rule states that the language in the context is to be given a grammatical and ordinary meaning unless this would result in some absurdity, repugnancy or inconsistency with the rest of the instrument.  The mode of construction should never be to interpret the particular word or phrase in isolation.

The court applied the rules of interpretation to the clause in the deed of settlement dealing with payment by the man of R3500 per month.

The court was of the view that the context and background preceding the signing of the deed of settlement, and the absence of any indication to the contrary, suggested that the monthly payments by the man to the woman had been intended to be payments of maintenance.

The court found further that unless he had expressly waived that right in the agreement of settlement between them, a party who had agreed, and subsequently been ordered, to make monthly maintenance payments to his former spouse had the right to discontinue making those payments in the event of the remarriage of the latter.

The court accordingly declared the monthly payments ordered to be made by the man to the woman to be maintenance payments and that the man had been relieved of his obligation to continue making such payments upon the remarriage of the woman.

Parties who are married to each other do have a legal obligation to maintain each other.  If you remarry that duty to maintain will fall on the new spouse and no longer the former spouse.  The court made the correct decision in the Van Der Vyfer case, in my opinion.

This article was written by Cape Town divorce lawyer, Peter M Baker

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