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Maintenance after spouse remarries

It is accepted in our law that if you got your spouse accustomed to a certain standard of living then you must maintain that after the divorce. I recently had a case where the wife brought an application for maintenance against her husband before a divorce summons had even been served. The parties had been married for 14 years, and the wife was about to be evicted from her flat. The lease contract was in her husband’s name, and he had been residing at that flat with her before he moved out. The court found that even though the parties had no children, it was the man’s duty to support her, and the court ordered the man to carry on paying his wife’s rent at least until the divorce was finalised.

Maintenance until death, remarriage or co-habitation

Normally an order would state that the spousal maintenance is payable by one spouse to the other until death or remarriage. These days it is also becoming common to state that the spousal maintenance is payable until death, remarriage OR co-habitation. Not everybody believes in marriage and it is quite common for parties to live together without getting married.

Odgers v De Gersigny

An interesting question which recently came up in our courts was whether somebody had to carry on paying personal maintenance for his former wife, even though she had remarried barely two months after the divorce had gone through. This came before the court in Odgers v De Gersigny 2007.

In the abovementioned case the man agreed to pay maintenance to his wife for a period of 24 months after the divorce. For some or other reason the Consent Paper was not made an order of court. The ex-wife then remarried and her ex-husband refused to pay maintenance. The High Court decided that the Consent Paper was valid, and that even thought the ex-wife had remarried, the man still had to continue paying maintenance, and the change in the ex-wife’s circumstances was irrelevant.

In this particular case the court even went so far as to find that the maintenance obligation could carry on even after the death of the maintaining spouse if the spouses so chose. In this case the amount being claimed was a small amount. The matter started in the Magistrate’s Court, and then went to the High Court and eventually the Supreme Court of Appeal. The principle of the case was no doubt important to both parties.

The abovementioned case is interesting as it illustrates also the extent to which the courts will go to uphold a written agreement entered into between two parties, even though it was not made an order of court. It also shows just how far the courts will go to ensure that maintenance is paid to a former spouse.

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

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Maintenance & paternity

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