Separation - Maintenance

Maintenance Issue 1

To commence our journey through this very sensitive topic let’s start with a defining introduction to this field:

In our law the terms “support”, “maintenance” and ‘alimony” are used interchangeable, although the term “alimony” is used less frequently in South Africa.

The duty of support extends to:

·         Accommodation;

·         Food;

·         Clothes;

·         Medical and dental attention; and

·         Other necessities of life on a scale in line with:

o   The social position;

o   Lifestyle; and

o   Financial resources of the parties involved.

While food, clothing and shelter are always mentioned in any discussion of maintenance, the concept embraces much more than these necessities.

The maintenance of children also includes education, and must always be approached in a responsible and sensible manner despite the separation emotions in play.

Today the scope of maintenance is always determined according to the standard of living of the parties concerned.  In these issues we will however observe in case precedent that when people separate living standards logical lowers for both parties or at least one of the party’s.

In the following issues we will be looking at the following type of separations:

·         Marries couples;

·         Living together couples including same sex relationships; and

·         Indigenous / customary marriages.

In all issues there will be two to three court cases mentioned irrelevant of the topic under discussion to stimulate the curiosity of the reader on what is transpiring in our courts in terms of these events. 

Court Cases

Administrator, Natal v Edouard ( a very well known case in its field)

Where a child is born after a doctor has failed to sterilize the child’s mother, the doctor’s employers should pay maintenance – which of course in this case happens.

Ally v Dinath

The parties have lived together in an Islamic relationship for about fifteen years, had tacitly or by implication entered into a universal partnership and accumulated a joint estate and the aim of the partnership was to create a joint household and to accumulate a joint estate for the benefit of both parties.  The court referred to the firmly established principle that any contract can be brought about by conduct and, in respect of the making of a profit, the allegation of the objective of the accumulation of an appreciating joint estate was found to be sufficient, at least for purposes of pleading.   

Although was only for the purposes of pleading it did pave the way for what was to come – somebody was going to be up for some kind of maintenance.  This case already occurred in 1984.

Amod v Multilateral Motor Vehicle Accident

The insistence that the duty of support flowed only from a marriage solemnised and recognised by one faith, to the exclusion of others was an untenable basis for the determination of the boni mores (best interest) of society.  It was inconsistent with the new ethos of tolerance, pluralism and religious freedom in the community.

This important shift in the identifiable boni mores of the community must also manifest itself in a corresponding evolution in the relevant parameters of application in this area.

What the defendant had to show was;

·         A duty of support;

·         That the duty arose from a solemn marriage in accordance with the tenets of a recognised and accepted faith; and

·         That the duty deserved recognition and protection for the purposes of the defendant’s action.

And there we have the painful evolution that started in 1984 and found friendly harbour in 1999 in our courts.

I think we will apply the brakes at this stage so that you can ponder the concepts that will start evolving in your mind already after this introduction on maintenance in South African law.