Zinta Heunis

You recently got divorced and you agreed to pay your ex-wife’s spousal maintenance for a couple of years. Your children tell you that their mom has a new boyfriend and the relationship looks serious.

The question you now ask yourself is probably, “should I continue to pay spousal maintenance?”

The answer depends on many factors, each unique to its own set of circumstances and as such, it is advisable that you seek assistance from an attorney to discuss a possible way forward. However, this article may deem as a good starting point for you to understand your rights and to determine a possible way forward.

In terms of the dum casta principle you can argue that your ex-wife waived her right to spousal maintenance the moment she abandoned a chaste lifestyle. The principle, however, should have been explicitly stated in the divorce settlement agreement. (It is important to note that there is no implied requirement that your ex-wife must lead a chaste lifestyle.[1] )

In the event that the dum casta principle was not explicitly included in your divorce settlement agreement, you could rely on concubinage. What does concubinage mean? Well, it is based on the idea that your ex-wife is receiving money from another “source”.

“Source” does not relate to income derived from work. It would be wrong to assume that you may stop paying spousal maintenance if your ex-wife starts earning an income.[2]

To prove concubinage you must prove that your ex-wife and her new boyfriend are:

  • permanently living together
  • under one roof,
  • engaged in an intimate or sexual relationship and
  • that both parties are contributing to the joint household.[3]

In order to establish whether the relationship is permanent in nature, it should be clear to an outside person that the parties intended to enter into a relationship for an indefinite period of time, and that such intention was clear from the beginning of the relationship.[4]

Lastly you must have sufficient reason to suspend your spousal maintenance obligation towards your ex-wife. You are obliged, as far as your capacity allows you to, to pay the spousal maintenance that you agreed on (and is bound to) in terms of the settlement agreement.[5] Sufficient reasons will depend on your actions, your age, your health and your capacity or means to pay spousal maintenance.[6]

Always be honest with the court regarding the above, we don’t want a contempt of court situation on our hands. Should you need assistance, arrange a consultation today to ensure that your rights are protected.

  • [1] Watson v Watson 1959 1 SA 185 (N).
  • [2] Hancock v Hancock 1957 2 SA 500 (C).
  • [3] Drummond v Drummond 1979 1 SA 161 (A).
  • [4] Owen-Smith Supra 167.
  • [5] Pieterse v Pieterse 1965 (4) SA 344 (T).
  • [6] Hancock v Hancock 1957 2 SA 500(C).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.