I have more male clients (ex-husbands / fathers) than female clients and my consultations often start with regrets.
I would be interested to know if it can be proven if males tend to settle divorce actions quicker than females. I often experience that my male clients entered into consent papers that are always in their best interest, but they have done so not being fully advised of future consequences of maintenance orders, or out of desperation to end the marriage.
Often when an “ex-husband” starts to flourish again financially after divorce, when they have met someone new or have further children or when they are at retirement age, they wish to amend or set aside their maintenance agreements, entered into at date of divorce. This is unfortunately a very difficult task, and one is either subject to expensive High Court litigation to set aside the dum casta clause or one must approach the Maintenance Court, which is a drawn-out and timeous exercise.
It is very important to consider the following legal principles when applying to have a maintenance order (whether spousal or for children) reduced or set aside, after date of divorce as the burden of proof rests on the Applicant :
good cause must exist for the order to be varied or set aside:
The term “good cause” has not been adequately defined in the judicial precedent as entrenched by our Courts. Our Courts are, however, of the opinion that a precise definition is not possible nor desirable and that the question of whether such good cause exists, must be adjudicated against all the relevant facts of the case. Considerations of reasonableness and justice shall dictate how the discretion must be exercised by the Maintenance Officer / Presiding Officer. The onus is however on the party bringing the application, to convince the Court that good cause does exist for the variation of the existing Maintenance Order. (Roels v Roels 2003 (2) SA SA 441 (c); Whiteley v Whiteley 1959 (2) SA148 EC).
Res judicata
The investigation to be done in divorce proceedings to determine the maintenance component is distinctly different to the investigation to be done in Maintenance Court proceedings.
In divorce proceedings, all the relevant factors as listed in Section 7 (2) of the Divorce Act are considered, which are amongst others the current and future earning capacity of both parties, their earning potential, their current financial needs and obligations, the age of both parties, the duration of the marriage and their standard of living throughout the marriage.
However, when it comes to an application for the discharge or variation of a maintenance order already made, the Maintenance Court’s scope is much more limited, as a maintenance order has already been made. When the Court grants a maintenance order as part of a final Decree of Divorce, it is deemed to be a reasonable amount. When the parties enter into a Settlement Agreement, both parties accept that the amount for maintenance is reasonable and when such Settlement Agreement is made an Order of Court, the matter is considered res judicata (the matter has been adjudicated by a Court). In a variation application, the principle of res judicata must be left unfettered. It is also untoward that a Court, which is not an Appeal Court, should grant an Order about the correctness and reasonableness of a decision as pronounced by another Court.
In Pieterse v Pieterse [1965] 4 All SA 316 (T) the Court held that as far as possible a person should be held to his undertaking to pay maintenance.
In Georghiades v Janse van Rensburg [2007] 3 SA 18 (C) the Court held, inter alia, that sufficient reason for the variation of an original maintenance order would rarely exist where such order was embodied in a Consent Paper incorporated in the Divorce Order, since the principle pacta sunt servanda was applicable in the context of a Consent Paper. This principle would apply where, as in the present case, it is clear from the terms of the Consent Paper that the Maintenance Order formed part of the entire divorce settlement, which was a “package deal”. It cannot be considered in isolation post divorce.
One party’s dissatisfaction
In the matter of Sparks v Sparks [1998] (4) SAHV, Witwatersrand it was held that a maintenance order will not be varied merely because one party is dissatisfied with it.
In the matter of Reid v Reid [1992] 3 ALL SA 354 (E) it was held that a Court can only vary an existing maintenance order, if there has been a change in circumstances since the order was initially granted and if it is unreasonable to abide by the terms of such order. It was further held that a maintenance order cannot be varied simply because the Applicant agreed to an unjust divorce settlement, as this could easily lead to the abuse of the court process. Judge Erasmus further found that special circumstances must be proved before the Court will permit a party to question the justness of the existing maintenance order. The Court held that where the existing order resulted in a disparity of income between the parties, such disparity should continue as it is not the function of the Court which varies an existing maintenance order to bring about parity between the parties … the mere fact that there is financial inequality between the parties does not mean the order must be varied. The fact that a party who must pay maintenance has remarried is usually not considered sufficient reason for variation of the maintenance order, as the Court is reluctant to vary an order where a person’s difficulty in meeting his obligations result from his or her own voluntary undertaking for example responsibilities towards his second wife.
Reasons for the deterioration of the maintenance debtor’s financial position
In applications for a reduction / discharge of a maintenance order, on the grounds of the deterioration in the financial position of the Maintenance Debtor, the Court must establish whether the deterioration is due to circumstances beyond the Applicant’s control. If the Applicant has himself/herself been the cause of it, for instance by entering into a second marriage, the Court will be inclined to be less sympathetic.
In Prophet [1948] (4) SA 325 (O) the Court held that a Court will not be readily inclined to regard a substantial drop in income brought about by a man of his own volition as a sufficient reason for reducing the amount of maintenance payable by him.
According to Reyneke 1990 3 SA 927 (E) it does not matter that the person who has been called upon to provide the maintenance, is unable to do so because he has deliberately impoverished himself.
In the matter of Roels v Roels [2003] (2) All SA441(C) it was held that an existing maintenance order should not be varied because the Applicant has sufficient capital resources which can be sold to comply with the terms of the existing maintenance order (as confirmed by Magistrate Koopman in the 2012 Maintenance Court proceedings in Kirkwood). The obligation rests first upon the Applicant (the person against whom the order was made) to realise his/her capital assets and not on the person designated to receive the monthly maintenance payments.
Maritz, JP confirms in Jacobs v Jacobs [1955] (4) SA 211) that:
” where it appears that the party who has contracted to pay an amount is still well and able to pay that amount and where there are no moral or equitable reason apart from the financial needs of the parties which appear to necessitate the alteration of the order, I do not think there has been good cause shown in terms of this section. The Applicant has not been what one would call quite candid with the Court. He undoubtedly did not give the correct amount of his income, he increased his expenditure and he tried to inflate the Respondent’s. l, refer for instance, apart from the other points made in argument, to the unjust criticism of his wife’s affidavit when he said she must be spending an excessive amount on entertainment. He seeks to decrease the maintenance for his former wife and child by a sum of R… per month. It is interesting to note that this is just a little below one of the new obligations which he has taken upon himself of R… per month towards a donation of furniture to his new wife. In other words, what he is really trying to do is to depreciate the payment to his former wife and her child, by the amount he is spending to ‘feather his own nest’.
In Coplowitz v Coplowitz [1969] WC, it was held that the standard of living at which a divorced spouse is to be maintained must be determined at the date of divorce, always bearing in mind that the standard drops dramatically on divorce. An improvement to one’s financial position after divorce is to one’s own benefit since the divorce bond of marriage no longer exists.
Accordingly, it is extremely important to think very carefully before agreeing to a maintenance order in a decree of divorce.
Article written by Faure & Faure Inc. family law specialist, Marelize Meintjes.
For any family law related queries, please get in touch with Marelize Meintjes by calling on 021 871 1200 or emailing contact@faurefaure.co.za
For more information, contact 021 871 1200 or email contact@faurefaure.co.za.