The
applicant was married to the respondent until 6 August 2009 when they were
granted a decree of divorce by this court. The Divorce Order granted the
respondent spousal maintenance in terms of their consent paper. The consent
paper provided for the respondent's maintenance as follows;
“Until
plaintiff's death or remarriage defendant will pay to the plaintiff in cash by
way of personal maintenance (with effect from 1st July 2009 and
thereafter on or before the first day of each successive month) the sum of
US$740= per month.”
The
applicant has been complying with the court order but now seeks an order
setting aside spousal maintenance on the basis that the respondent no longer
needs it and that it was in their contemplation that the consent paper could be
varied. He also relies on his changed circumstances as his salary has been
reduced by a sum of US$500= per month.
The
respondent, in her opposing affidavit, said she still needs spousal maintenance
as her circumstances have not changed since the granting of the decree of
divorce. She is now aged 63 and suffers from various ailments. She said she
cannot manage without the spousal maintenance….,.
Counsel
for the applicant and counsel for the respondent agree that section 9 of the
Matrimonial Causes Act provides for variation on good cause. In this case, the
meaning of the word “vary” would be applicable in respect of the changing of
the order on spousal maintenance leaving the rest of the order as it is.
Section
9 of the Matrimonial Causes Act provides as follows;
“Without
prejudice to the Maintenance Act [Cap 5:09], an
appropriate court may, on good cause shown, vary, suspend or rescind an order
made in terms of section seven, and
subsections (2), (3) and (4) of that section shall apply, mutatis mutandis, in respect of any such variation,
suspension or rescission.”
Section
9 provides for variation, suspension and rescission of an order on good cause.
The use of the three words in succession means each word carries a meaning
which does not encroach into the ambit of meaning of the other. This means the
word “vary” does not mean suspend or rescind. The Legislature clearly intended
to provide for the three separate scenarios. Each word must therefore be
restricted to its ambit of meaning. That, however, does not affect the
applicant's application as he merely seeks to vary the order granted by
removing from it the maintenance provided for the respondent without rescinding
the whole order.
I
must therefore proceed to consider the basis for such variation.
The
applicant says they did not envisage the provision of maintenance for the
respondent until her death or remarriage. He, in his founding affidavit, said
they intended to provide for her maintenance until she could be able to look
after herself which he says she is now able to. The respondent said they did
not and that is why they used words 'until death or remarriage', to provide for
her maintenance until one of those eventualities took place. None of them
have occurred.
The
question to be determined is the intention of the parties when they provided
for the respondent's maintenance.
It
may be possible that the applicant agreed to that clause in order to finalise
the divorce. If that is what he did he acted carelessly to his own
prejudice. A party may promise the other the earth in his or her desire to
finalise a divorce. Such convenience may, however, hound that party in the
future as the courts cannot lightly interfere with a party's exercise of his
right to agree on whatever he wants to provide for his former spouse. In the
case of Buch
v Buch
1967 (3) T. P. D) 83…, after finding the applicant's reasons for seeking a
variation “very inadequate”, at p85 G-H to 86A, CLASSEN J, said;
“No
doubt, where a man has solemnly entered into an agreement to maintain his
former wife he must, as far as possible, be held to his agreement. A court will
not lightly free him from that undertaking. The danger mentioned by Prof. Hahlo
in the 1966 South African Journal page 5 (and also 1965 S.A.L.J. 285 must also
be guarded against. He wrote;
'It
is common experience that a husband seeking release from the marriage tie in
order to be free to marry his lady love is willing to promise his wife
practically anything by way of maintenance if she will agree to a divorce. It
would be unfortunate if, as a result of cases such as Beneke 1965 (1) S.A 855
(T), husbands were to gain the impression that they may safely promise their
wives 'the sky' in the confident expectation that the court will subsequently
reduce the maintenance payable to them as soon as they remarry. Indeed, on the
reasoning of Beneke'case, the more unrealistic the amount the husband promises
to pay the greater the likelihood of a large subsequent reduction, a doctrine
hardly conducive to morality in matrimonial bargaining.'”
In
this case, the respondent was the plaintiff in the divorce case. The
applicant was therefore not the one seeking freedom from her but the other way
round. It is inconceivable that he had any deceitful reason to be generous to
the respondent who was divorcing him to the extent of providing for her
maintenance until she dies or remarries. It seems to me that he expressed his genuine
intention in the consent paper. His claim that he did not mean what he signed
for is not consistent with the probabilities of the circumstances leading to
their divorce.
The
words used in the consent paper are consistent with an intention to provide
maintenance till death or remarriage. The intention suggested by the applicant
is not consistent with the words used. The words used by the parties do not
admit of a temporary or bridging maintenance. They are specific as to the
events which were to terminate the obligation to pay maintenance. Death or
remarriage are events which cannot be mistaken for bridging or temporary
maintenance. I therefore, do not believe the applicant's averments. I
would have believed him if he said they intended to vary the quantum of
maintenance if there was just cause.
The
applicant's salary was reduced.
That,
in my view, would be a just cause for reducing the maintenance payable to the
respondent. He, however, specifically applied for the immediate cessation of
the spousal maintenance. He did not leave any room for the court to grant an
alternative order. I am therefore left with no option but to dismiss his
application even though the reduction of his salary justifies the reduction of
maintenance payable to the respondent.
The
applicant's application is therefore dismissed with costs.
