On
the other hand, the thrust of the applicant's argument of variation
of maintenance is provided for in the Matrimonial and Causes Act,
section 9, which states:
“Without
prejudice to the Maintenance Act [Chapter 5:09]; an appropriate court
may, on good cause, shown, vary, suspend or rescind an order made in
terms of section 7 and subsection 2, 3 and 4 of that section apply
mutas mutandis in respect of any such variation, suspension or
awareness.”
Clearly,
what is central to variation of an order is good cause.
In
Henning v Henning HC12111/01 HH27-03, GOWORA J ably outlined what
amounts to good cause and also laid out factors for consideration for
one to determine good cause. The judge further made it clear that the
onus is on the applicant to show change of circumstances amounting to
good cause. In order for a court to grant variation of a maintenance
order there must have been a change in the conditions that existed
when the order was made. Any change in the means/income, needs or
obligations of one of the ex-spouses may be sufficient reason for
obtaining variation of the earlier order.
In
casu, the applicant is seeking the following:
1.
Under variation of maintenance; that the maintenance of $100= per
month per child must be increased to $500= per child per month until
the child attains the age of 22 or becomes self-supporting.
2.
That the clause for maintenance paid to the applicant of $2,000= per
annum, as long as his obligation to pay maintenance in relation to
the children pertains, be varied to the effect that the respondent
pay $2,000= per month until the applicant's death or re-marriage
but excluding any period of cohabitation with another man.
3.
That the current order of maintaining the applicant on medical aid be
varied to extend beyond the daughters attaining the age of 18. In
other words, the applicant seeks to vary the medical aid clause to
the effect that the respondent maintains her on such external medical
aid policy irrespective of their daughters attaining the age of 18.
It
is apparent from the papers that the applicant based her claim for
upward variation on the basis of a document attached to an answering
affidavit. She claims the respondent has been dishonest in that he
did not disclose his assets and wealth. The applicant, in fact,
describes the respondent as a wealthy man.
The
difficulty presented by the approach adopted in the circumstance of
this case is obvious.
The
applicant alleges dishonesty on the part of the respondent and
alleges, without substantiation, that the document attached to the
answering affidavit was authored by the respondent with the
assistance of his PA. There is untested correspondence from third
parties which the applicant seeks to rely on to prove that the
applicant is wealthy, and, as such, maintenance ought to be varied
upwards. These are contentious issues which require full ventilation.
In
order to come up with a determination, it is trite that the court
will not resolve disputed issues on affidavit. In this case, the
applicant imputes dishonesty on the part of the respondent and
alleges the respondent lied. This, of necessity, calls for a finding
on who is telling the truth, which aspect cannot be decided on
application proceedings. I subscribe in to the sentiments echoed in
Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 wherein it
was stated:
“This
conflict is indeed apparent on the applicant's own papers, since he
annexes documents drawn by the first respondent and contends that the
allegations therein are untrue…,.”
By
insisting on proceedings, one brings himself within the scope of the
dictum of MILLER JA in Tamarillo (Pty) Ltd v BN Atiken (Pty) Ltd 1982
(1) SA 398 (AD)…, where the learned judge of appeals says:
“A
litigant is entitled to seek relief by way of Notice of Motion. If he
has reason to believe that facts essential to the success of his
claim will probably be disputed he chooses that procedural form at
his peril.”
See
also Mata v Otho N.O. 1972 (3) SA 858 and Room Hire Co. (Pty) Ltd v
Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).
The
general rule is that where there is a real dispute of fact it is
undesirable to seek to settle the issue solely on probabilities
disclosed in contradictory affidavits.
It
is apparent from the papers that the applicant seeks to recall the
position taken when she properly entered a consent paper which was
incorporated as an order of this court. Sections
7 and 9 of the Matrimonial Causes Act by no means seek to
indefinitely prolong litigation. The Act allows re-visitation of
continuing obligation on good cause shown. Considerations such as
change in financial standing could, in befitting circumstances,
entail an increase or decrease of maintenance. What is central to
good cause is what is just and equitable. That a party regrets having
agreed and that they feel they can bargain better is not what falls
into consideration of 'good cause' especially where, at the time
of entering into consent or agreement, the parties were aware of the
full facts.
In
the present case, the applicant seeks to have her own maintenance
extend beyond the children turning 18 and also extended to include
periods when she will be cohabiting, but not married, to any other
party. At the time of entering into the initial consent paper,
incorporated in this court order HC7216/07, the applicant was aware
of considerations having a bearing on date of termination of
maintenances. The parties agreed the maintenance would terminate upon
the children attaining the age of majority and that the children
would have a chance to choose who they want to live with. In any
event, the applicant, in the papers, alluded to the respondent giving
more than what was ordered to the children. Although she attributes
that to the applicant trying to win favours from the children one
cannot help but read a responsible person as envisaged in the
Maintenance Act, acknowledging his obligation per the Act and the
Constitution. The children, if requiring maintenance in the form of
school fees and upkeep, have avenues to get upkeep from both parents.
Worth noting at this stage is the fact that the applicant, in her
presentation of income and expenses, did not disclose her own
contribution to the children. The claim for increase of maintenance
for the children, and extension of her own maintenance, to beyond the
time the children would have turned 18, was not substantiated. In
other words, given the introduction of multi-currency there was no
evidence to show rise in costs of living warranting the revisiting of
the current maintenance. It appears the request is simply centered on
the reflection that the applicant feels she agreed to a position she
no longer likes and that certainly does not fall under 'good cause'
contemplated by section 9 of the Matrimonial Causes Act.
As
regards post-divorce spousal maintenance, the parties agreed on a
cut-off point being that when the youngest child turned 18. This is
in line with current trends for it is appreciated spouses owe each
other an obligation to assist each other during marriage, at
dissolution, and upon death. For the obvious reason that parties will
move on after divorce, maintenance of an ex-spouse cannot be for an
indefinite period. Where a party remarries and has other children,
for example, extra obligations for consideration will arise
warranting change of circumstances amounting to good cause. Also, in
this day and age where equality is the central aspect in all spheres
of life maintenance of an ex-spouse cannot be indefinite. I subscribe
to the reasoning in Chiomba v Chiomba 1992 (2) ZLR 197 (S) wherein it
was stated:
“Marriage
can no longer be seen as providing a woman a bread ticket for life. A
marriage certificate is not a guarantee of maintenance after the
marriage has been dissolved. Young women who worked before marriage
and are able to work and support themselves after divorce will not be
awarded maintenance if they have no young children.”
In
casu, the applicant, apart from submitting un-substantiated and
untested evidence in a founding affidavit that the respondent is a
very wealthy man (and that she is still in the time of the marriage 6
years after divorce) did not show any change of circumstances
amounting to good cause warranting variation of the maintenance in
relation to herself. It is clear that in 2009, when the parties
entered into the consent paper which formed the basis of the court
order, the applicant was aware of the standard of living she was
accustomed to. She agreed to the quantum of maintenance, medical aid
care and time frame of operation. No good cause has been shown to
warrant interference with the extant court order. Speculative
assumptions that the respondent is extremely wealthy, given the
application proceedings, is not good enough for the applicant.
In
the result, it is ordered that the application be and is hereby
dismissed with costs.
