TINA HOKWANA | Court grants papgeld let-off as ex-wife moves on with her life

A couple had entered into a deed of settlement which was concluded during their divorce.

Clause 3 of a written deed of settlement can be loosely translated as follows: “That the defendant must pay maintenance to the plaintiff up until her death, remarriage or cohabitation with another man, whichever event occurs first, in the amount of R16,000 per month…”

The ex-husband brought an application at the maintenance court in Bethlehem in terms of the provisions of section 6(1) of the Maintenance Act.

He sought for the discharge of his maintenance obligations towards the ex-wife and a reduction of the amount of maintenance in respect of the parties’ minor child.

On the evidence presented, the maintenance court found that the ex-wife was cohabiting with another man and this triggering the suspensive condition terminating her continued maintenance.

Ex-wife appealed the maintenance court’s order.

The appeal court had to determine whether the ex-wife and the new partner were “firstly, living under the same roof, secondly establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.”

In its determination on whether the ex-wife and new partner were living under the same roof, the appeal court took following into considerations:

• That the ex-wife and the partner had been in a relationship shortly pursuant to her divorce from the ex-husband;
• Partner's employment in Gauteng is the sole reason that he is only able to spend his weekends, holidays and free time with the ex-wife at her residence situated in Bethlehem. But for his employment, the new partner would on the probabilities live at the ex-wife's residence during the week too; and
• The partner’s trailer, his braai, various canopies, and the regular hanging of his clothing items on the washing line at the ex-wife's residence were, in the court’s view, further proof of the fact that he lives under the same roof as the ex-wife.

In determining whether the partner was “establishing, maintaining and contributing to a joint household”, it was clear to the court that he was in more than one way financially contributing towards the ex-wife by “buying some stuff”, make contributions to petrol, taking her and her (and the ex-husband's) minor child out for dinner, going on vacations, and has the benefit of the use of the Isuzu bakkie and contributes to the needs of the child. 

The Bloemfontein high court found that for these reasons, the ex-wife's appeal stood to be dismissed with costs.

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