Your soon to be ex-spouse has moved on and is now happily living with a new partner. They are in a stable, supportive relationship and the new partner doesn’t seem short of cash. Everyone is living happily ever after, so why should you continue paying maintenance to your ex-spouse?
The issue as to whether a former spouse is entitled to maintenance when he or she is living with a new partner who is supporting the former spouse financially, has been raised in many a Maintenance Courts.
We will deal with case law and the Maintenance Act 99 of 1998:
The judgment of Harlech-Jones v Harlech-Jones  ZASCA 19 bears reference: The issue in this case is whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce.
The duty of support
Neither spouse has a statutory right to maintenance. The language in the Divorce Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such. The court will consider the following factors before deciding whether to award spousal maintenance:
- The existing or prospective means of the parties
- Their respective earning capacities
- Their financial needs and obligations
- Their age
- The duration of the marriage
- Their standard of living prior to the divorce
- Their conduct, if relevant, to the breakdown of the marriage
- An order for the division of assets
- Any other factor which in the court’s opinion, should be taken into account.
The discretionary power of the court to make a maintenance award includes the power to make no award at all. Our law favours the ‘clean break’ principle, which means that after divorce the parties should become economically independent of each other as soon as possible.
Harlech-Jones v Harlech-Jones  ZASCA 19
Through a long line of cases dealing exclusively with maintenance pendente lite (i.e. while the divorce is pending), it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another partner.
The Supreme Court of Appeal in the Harlech-Jones case raised the question whether it would be against public policy for a husband to pay maintenance to his wife while she is living with another man.
The parties, who were married to each other in December 1972, were divorced in January 2011, after many years living apart and many drawn out legal battles. In terms of the Divorce Order, the former husband was ordered to pay the wife the sum of R2 000 per month as spousal maintenance with effect from 1 February 2011. With leave of the High Court, the former husband then appealed to the Supreme Court of Appeal to set aside the maintenance order.
By the time the Divorce Order was granted, both parties had formed relationships with other partners, and the wife had been living for some three years with another man who fully and unconditionally maintained her.
Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G; Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O) , it was argued that it would be against public policy for a woman to be supported by two men at the same time.
The court was of the opinion that while there are no doubt members of society who would endorse that view, it rather speaks of values from times gone by and the court was of the opinion that in the modern, more liberal age in which we live, public policy demands that a person who cohabits with another should not for that reason alone, be barred from claiming maintenance from his or her spouse.
However, in light of facts of the present case in which the former wife was being fully maintained by the man with whom she had been living with for years, the former wife failed to show that she was entitled to receive maintenance from her former husband. The Appeal therefore succeeded, and the maintenance order was set aside.
As such, you are not automatically absolved from your maintenance obligations if your former spouse resides with or obtains financial support from his or her new partner.
However, if the Divorce Order has not yet been granted, the fact that your present husband or wife resides with and/or receives financial support from a new partner, may be placed before the court as a reason why your spouse should not receive maintenance.
If a Divorce Order (or any other maintenance order) has already been granted, you may still approach the maintenance court for a variation of your maintenance obligations on the basis that your former spouse no longer requires such maintenance by virtue of his or her support from a new partner.
Contact your legal advisor for more information.
Eunice Pieterse is currently a associate in the Cape Town office of C&A Friedlander Inc.
Eunice specialises in matrimonial and family law.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)