Does the obligation to continue paying spousal maintenance persist when an ex-spouse starts cohabitating with a new partner?

By Sasha Kadish

Spousal maintenance refers to the financial support provided by one spouse to the other following a divorce to enable the financially disadvantaged spouse to maintain their standard of living and meet their financial needs. In South Africa, spousal maintenance can be rehabilitative, which is temporary support aimed at helping the recipient spouse recover financially after the divorce, or lifelong maintenance, which involves ongoing financial support for the ex-spouse’s lifetime, alternatively until their remarriage, or, in some cases, cohabitation with a new partner. The type of maintenance and the duty to pay it depend on the specific circumstances of each case.

In M.M.L v J.J.L  the court had to decide if an ex-spouse can legally stop paying lifelong spousal maintenance. The ex-husband applied for termination of his obligation to pay lifelong maintenance to his ex-wife on the grounds that she was now cohabitating with a new partner. The argument revolved around a settlement agreement signed by the parties during their divorce, which included a suspensive condition stating that “the Defendant (ex-husband) is required to provide maintenance to the Plaintiff (ex-wife) until her death, remarriage, or cohabitation with another man, whichever event occurs first, in the amount of R16 000,00 per month.” The ex-husband argued that his ex-wife was now living with a new partner, thus triggering the suspensive condition, and terminating her entitlement to maintenance.

In the case of Drummond v Drummond, the Court interpreted the suspensive clause as follows:

This clause was obviously designed to provide for the contingency that the appellant might establish a permanent relationship with some other man and enjoy the advantage of being supported by him, without attracting the consequences of a marriage and the resultant cessation of any liability for maintenance on the part of the respondent. As to the meaning of the phrase ‘living together as man and wife,’ the judge accepted that ‘the basic components of a marital relationship except for the formality of marriage,’ and that the factors to consider are firstly, living under the same roof, secondly establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.”

In the M.M.L v J.J.L case, the ex-wife and her new partner had been in a relationship for approximately 7 years at the time of the hearing. They shared the same room and bed when the partner stayed at the ex-wife’s residence. Although the new partner worked in a different province, he spent his weekends, holidays, and free time with the ex-wife at her residence. During his visits, he made contributions to expenses, such as purchasing items, contributing to petrol costs, and taking the ex-wife and her minor child out for dinner. The new partner also paid for joint vacations, although not necessarily covering all expenses. Furthermore, he used a vehicle financed by the ex-husband, and various items belonging to him were stored at the ex-wife’s residence. His clothing items were regularly hung up on the washing line there.

Considering these factors, the court concluded that an intimate relationship existed between the ex-wife and her new partner. The court also determined that, based on the probabilities, the new partner’s employment in a different province was the only reason he did not live at the ex-wife’s residence during the week. The storage of the new partner’s trailer, braai, canopies, and the regular hanging of his clothing on the washing line at the ex-wife’s residence further supported the conclusion that he lived under the same roof as the ex-wife.

As for the final element of “establishing, maintaining, and contributing to a joint household,” it was clear that the new partner had financially contributed to the ex-wife in multiple ways.

Based on these findings, the court ordered the termination of the ex-husband’s obligation to pay lifelong spousal maintenance to his ex-wife.

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