Court orders ex-husband to continue paying R100 000 monthly spousal maintenance to ex-wife who lives with father of her child

Divorce. Picture: Karolina Grabowska/Pexels

Divorce. Picture: Karolina Grabowska/Pexels

Published May 29, 2023


Pretoria – A businessman who wanted to be freed from paying R100,000 monthly spousal maintenance to his ex-wife because she was cohabiting with the father of her child, had his application dismissed.

The couple was married out of community of property in 2004 and they divorced in 2017.

During their divorce, they entered into a written settlement agreement where the man agreed to pay his ex-wife R100,000 every month and also buy her a new car every five years until her death or remarriage.

During the proceedings, only the wife had a legal representative, the man chose to represent himself.

Its unclear why he represented himself as he was not faced with financial constraints. He runs a restaurant and a panel-beating business.

He told the court that at that time, he just wanted the divorce to be finalised.

He learned that his ex-wife was now living with the father of her child, B, who was born in 2012 while they were still married.

He approached the South Gauteng High Court in Joburg to amend the divorce settlement which will recognise cohabitation as remarriage.

In his quest to be freed from maintenance, he brought a former domestic worker who worked for his ex-wife for the last seven years to testify on his behalf.

The domestic worker told the court that B’s clothes were at the house on a permanent basis which would indicate some kind of live-in arrangement, but that he would only be at the house intermittently.

He came and went, and would leave for a few days after staying over for two or thee weeks.

To cement his case, he said the source of his information relating to the cohabitation was his daughter who was staying with his ex-wife.

He said he knew that B was the father of the boy born in 2012 while he was still married to his ex-wife. He added that he was in possession of a paternity test that showed he was not the biological father.

Representing herself, the ex-wife confirmed that she was involved in an “on and off” relationship with B and that he would visit her house for days before returning to his own residence in Houghton.

She said she never considered entering into a marriage with him.

She agreed that they had the child together who was born in 2012 and they reconnected in 2021 on a romantic basis.

They then separated again in November 2022 and rekindled their relationship in February 2023.

The husband’s legal representative argued that the ex-wife’s relationship with B gives rise to the circumstances upon which the spousal maintenance is to be terminable.

The legal representative argued that the recognition of same-sex relationships and permanent life-partnerships between people merited the recognition of cohabitation as a “marriage” and the cohabitation between the ex-wife and B exonerated the ex-husband form paying spousal maintenance.

However, Judge Johan Moorcroft said reference to cohabitation in the settlement agreement was not agreed upon by the parties. If it had been the intention of the parties to include cohabitation in clause of the agreement, there is no reason why they would not have said so.

“There is no logical reason why firstly a tacit or implied term that maintenance is terminable upon death or remarriage must be read into the contract, and then secondly that the well-known word “remarriage” must be interpreted to include something that is not a marriage but a cohabitation,“ he said.

Regarding the law recognising same-sex relationships, Moorcroft said it does not mean that in the settlement agreement now before court the word “marriage” should be given an extended definition never intended by the parties.

Moorcroft dismissed the application and ordered the ex-husband to pay all the costs.