Court Orders Spousal Maintenance for Cohabiting Ex-Wife

A businessman who sought to be released from the obligation of paying his ex-wife a monthly spousal maintenance of R100,000 due to her cohabitation with the father of her child had his application dismissed.

The couple got married under a out of community of property arrangement in 2004 and divorced in 2017 as reported by IOL.

During their divorce, they reached a written settlement agreement in which the man agreed to pay his ex-wife R100,000 per month and also provide her with a new car every five years until her death or remarriage.

Only the wife had legal representation during the proceedings, while the man chose to represent himself.

It is unclear why he represented himself as he was not facing financial constraints, being the restaurant owner and a panel-beating business.

Also Read: Johannesburg Court Rejects Wife’s R95K Maintenance Demand

He informed the court that, at the time, his main objective was to finalise the divorce.

Later, he discovered that his ex-wife was cohabitating with the father of her child, referred to as B, who was born in 2012 while they were still married.

Seeking to amend the divorce settlement to recognise cohabitation as remarriage, he approached the South Gauteng High Court in Joburg.

In an attempt to strengthen his case, he presented a former domestic worker who had worked for his ex-wife for the past seven years as a witness.

The domestic worker informed the court that B’s clothes were permanently present at the house, indicating some form of live-in arrangement, although he would only be there intermittently.

B would come and go, occasionally leaving for a few days after staying over for two or three weeks.

To support his argument, the man stated that his source of information regarding the cohabitation was his daughter, who was staying with his ex-wife.

He also claimed to have knowledge that B was the father of the child born in 2012, despite not being the biological father, supported by a paternity test he possessed.

The ex-wife, representing herself, confirmed her “on and off” relationship with B, stating that he would visit her house for a few days before returning to his own residence in Houghton.

She clarified that she had never considered entering into a marriage with him.

Acknowledging that they had a child together born in 2012, she explained that they reconnected on a romantic basis in 2021.

However, they separated again in November 2022 and resumed their relationship in February 2023.

The husband’s legal representative argued that the ex-wife’s relationship with B warranted the termination of spousal maintenance.

They contended that recognising same-sex relationships and permanent life partnerships justified considering cohabitation as a form of “marriage,” thus exempting the ex-husband from paying spousal maintenance.

However, Judge Johan Moorcroft ruled that the parties in the settlement agreement did not agree to the reference to cohabitation.

If the intention was to include cohabitation as a clause in the agreement, it would have been explicitly mentioned.

He stated, “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.”

Regarding recognising same-sex relationships in the law, Moorcroft clarified that it did not imply an extended definition of “marriage” in the settlement agreement beyond what the parties had intended.

Consequently, Moorcroft dismissed the application and ordered the ex-husband to bear all the costs.

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Photo by EKATERINA BOLOVTSOVA