For the claimants to succeed, they are required to prove not only that the deceased had provided support, but also their own indigence and inability to support themselves.
Indigence is defined as extreme need or lack of the basic necessities of life. In the same case, it was pointed out that where a parent must be supported it is not only his own needs but also those of his dependents that must be considered. Is there a duty on grandparents to support their grandchildren? It would seem as if the direct line must first be exhausted before the collateral line is engaged for support. Can a maintenance order be varied where the parties agreed in a settlement agreement that maintenance will not be subject to variation? It frequently happens that parties include a clause in a Divorce Settlement Agreement that neither party shall have the right, after divorce, to approach the maintenance court for a variation of the spousal maintenance.
Effectively this means that the maintenance may not be increased or decreased. Those who have argued that it was, considered the waiver to be undesirable in that it deprived the court of its jurisdiction to rescind, suspend or vary the order. Those who took the opposite view stressed freedom of contract. He nevertheless found the relevant clause to be undesirable on other grounds.
Expat divorce in South Africa - Expatriate Law
It permits the Court, for ' sufficient reason ', to rescind, vary or suspend a maintenance order granted earlier. This provision was introduced so as to authorise the Court to amend maintenance orders on good cause shown, so as to enable spouses to come to Court 'to redress injustices occasioned by a maintenance order which no longer fits the changed circumstances'. Comparisons were made, inter alia, between relevant clauses of the consent papers in those matters and those of the consent paper in the present matter.
In this regard it bears repetition that limited assistance can be obtained from considering the terms of agreements which featured in other cases and that each case must be decided on its own facts". In Bond v Bond  the court was asked to vary a consent order incorporated in the divorce decree regulating the parties' divorce, the court in the present inquiry, focused on the interpretation of one of the clauses relating to maintenance in the order.
The respondent contended that the applicant was precluded from obtaining a variation of the consent paper.
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The court held that a basic principle of interpretation is that a court will always first look to the wording of the terms that had been agreed upon by the parties, and will as far as possible give the language used by the parties its ordinary grammatical meaning. The only circumstances where this situation will be deviated from, is when it leads to inconsistency, repugnancy or an outcome contrary to public policy.
Once the literal meaning has been ascertained, then regard must be had to the context in which a word or phrase is used. Regard must also be had to the nature and purpose of the contract.
Trust assets and accrual claims at divorce: The SCA opens the door
In doing so, the common intention of the parties at the time of concluding the consent paper must be ascertained according to the above mentioned cannons of construction. In this case, the respondent undertook to maintain the applicant "until her death, remarriage or cohabitation in a relationship akin to that of marriage". That was what would constitute the "maintenance period".
There was no automatic termination of the maintenance, unless one of those events occurred.
Child Maintenance and Applications – How does it work?
In terms of section 8 1 of the Divorce Act 70 of , a maintenance order may be rescinded, varied or suspended at any time if the court finds that there is sufficient reason therefore. The only limitation on the court's power to rescind or vary a maintenance order, is that "sufficient reason" must be shown. The court concluded that the applicant was entitled to apply for an increase as she had. For example, where a husband becomes unemployed or is sequestrated after a divorce his dilemma will be that he will not be able to approach the maintenance court for a reduction of his maintenance obligations.
This in itself can be viewed as against public policy. It is clear that the court will always be able vary a maintenance order when there is sufficient reason to do so. Although a settlement agreement is contractual in nature it may be argued that since it is impossible to foresee the future circumstances of the parties considerations of fairness and justice should be applied.
With that in mind it is submitted that in special circumstances a courts' jurisdiction should not be ousted to vary a maintenance order that simply does not fit in with reality.
Settlement agreements are not agreements that are cast in stone. For example, a settlement agreement may deal with the care and contact arrangements of the children and stipulates how contact between the parents and the children should be exercised. As children grow older the essence of the contact also changes as the circumstances evolve, the same can be said of maintenance. Each party contended that it would be in the best interests of the minor children to reside with them and advanced a number of reasons in support of their contentions.
Facts In this matter the court was faced with a situation where both the Father and the Mother are good, loving parents, who are able to care for their children. Whilst together the Mother was the primary caregiver. Since February the Father was caring for the children with the assistance of a nanny. The children were at school during the day until and respectively and with the nanny during the rest of the afternoon.
During the evenings the Father took care of the children. The Father also took the children to school. The Mother was a professional woman who was working and studying. The Father on the other hand testified that at times the children did not want to visit the Mother.
Cases and Articles on Divorce Law and Family Law in the SA courts.
The court noted that experience had shown that children will often give different versions to different parents in a situation like the present. The children did not want to be separated from either parent and still indulge the hope that their parents would reconcile. The Mother on the other hand testified that the Father sometimes frustrated her contact with the children. The Father had shown remarkable commitment. He had on the other hand re-arranged his life to best suit the children. He was able to spend time with the children, communicate with them and fulfil the nurturing role.
The court was particularly struck by the fond manner in which the Father spoke about his daughter. The children were doing well at school. They appeared to be happy and secure. The children were too young to express their own views. Undue weight should furthermore not be placed upon any one factor, but these factors, like all other relevant factors, must first of all be considered against the backdrop of the specific circumstances of each case and secondly weighted against all other relevant factors to be considered in determining what would be in the best interests of the child.
However, this is not always a wise policy, for it means that permanent custody is often awarded on the basis of an arrangement made when the parents were in turmoil and least able to make reasonable decisions. Besides, if parents, who have temporary custody realise that they are in a superior bargaining position, they may try to delay proceedings, since the longer they have temporary custody the stronger their position, become.
Divorce inevitably occasions change in the lives of children such as adjusting to the daily absence of one parent, while living with the other and going back and forth between two different households. Each individual child also responds differently towards a divorce. Those upsets are usually minor and superficial. Fathers have also taken up parenting roles, and mothers have also followed careers. The norm these days is rather that of working parents who manage with the assistance of aftercare, domestic workers and family. As far as young children are concerned, the pendulum has swung to accommodate the possibility of a father being a suitable custodian parent to young children.
As South African family life changes, fatherhood is shifting in important and sometimes amazing ways. What one must never forget is that it is not really the parents who have rights it is the children who have the rights to have a meaningful relationship with both their parents.
Child Maintenance in South Africa: Your Questions Answered
Parents have responsibilities to their children, these responsibilities are enshrined in law. The sad reality is that too many people flout these responsibilities and do not put their children first when a relationship ends. This means the children then become the pawns in a game to hurt the other person.
Many fathers and mothers I have worked with know or have been subjected to terrible allegations of abuse and violence towards their former partners and their children all in the name of hindering them from seeing their children to hurt them. Sadly is it is always the children who lose out every time. Often these fathers abandon the family and leave all the responsibilities to the mother or her new partner to care for his children.
I am in such a situation. I care for two lovely children who have been abandoned by their father who they have not seen for more than 8 years with no emotional support and no maintenance, for the past 8 years I raised them as my own and I am proud that they call me dad.
Research has found that serial fathers who leave their homes and go on to start a second family are the men most likely to lose contact with their children. More than 1 in 5 men in the UK who live with second families never meet their children born during earlier relationships, according to research. Less than 1 in 12 fathers in the survey said that they see their children from their first family every day and nearly one third said they do not have a close relationship with them. The study underlined concerns over the impact on children in single-parent families over the lack of men in their lives.
Another survey found that nearly one million men have children they do not live with, around one in 20 of all fathers. A recent research paper in the United States suggested that toddler dads are not quite as useless as the numbers and their popular image would imply. Many people believe that a person can never lose their rights and responsibilities over a child.
While a person may have parental rights and responsibilities in respect of a child, the extent of such rights and responsibilities may be altered if it is in the best interest of the child. It is also significant to note that where a Section 28 application is launched by a person who has no parental rights and responsibilities, that person can also launch an application in terms of Section 23 to have rights of contact and care granted to them. Do not reproduce if you do not intend to be the best parent alive. The primary issue between the parties had been whether the law of Mauritius or of South Africa governed their proprietary rights upon divorce.
Put simply, the proper law of the marriage had to be determined. The parties were married to each other on 29 June in Mauritius. A month later they moved to South Africa and continued to live here until their divorce in November In about July the respondent, the wife plaintiff in the court below sued the appellant, the husband defendant in the court below for divorce in the South Gauteng High Court, Johannesburg, contending that the marriage relationship between her and the respondent had irretrievably broken down.
On either basis, she alleged that during the subsistence of the marriage she had contributed to the maintenance and or increase of the husband's estate by the rendering of services and the saving of expenses, which otherwise would have been incurred. She listed the contributions she had made in cash and in kind.