The issues that are dealt with in this article is whether a partner is entitled to maintenance from the other partner in terms of a Divorce Order if the partner that is asking for maintenance, is living with / or has a new relationship, where that partner is already maintaining him / her. We will deal with case law and the Maintenance Act 99 of 1998.
You’re soon to be ex-wife has moved on and is now happily living with a new partner. They are in a stable, supportive relationship and her new partner doesn’t seem short of cash. Everyone is living happily ever after, so why should you pay maintenance to your ex-wife?
The judgment of Harlech-Jones v Harlech-Jones  ZASCA 19 has a 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 each party
- 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 basically means that after a 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 pendent elite (awaiting litigation), it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another partner.
As mentioned above, the Supreme Court of Appeal gave an interesting judgment in the matter of Harlech-Jones v Harlech-Jones  ZASCA 19. The question raised in this matter was inter alia whether it would be against public policy for a man 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 legal battles. In terms of the Divorce Order, the Appellant (the former husband) was ordered to pay the Respondent the sum of R2 000-00 per month as maintenance with effect from 1 February 2011. With the leave of the High Court, the Appellant then appealed to the Supreme Court of Appeal solely against the maintenance order.
By the time the Divorce Order was granted, both parties had formed relationships with other partners, and the Respondent 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 past 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, where the Respondent was being fully maintained by the man with whom she had been living with for years, the Respondent 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.
Therefore, if you feel that you are currently paying your ex-partner maintenance which he / she do not deserve, contact your legal representative and take back the money that you worked so hard to obtain!
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)