Botha v Botha

• Jurisdiction: South Africa

Botha v Botha
2009 (3) SA 89 (W)

2009 (3) SA p89

Citation	2009 (3) SA 89 (W)
Case No	2005/25726
Court	Witwatersrand Local Division
Judge	Satchwell J
Heard	May 7, 2008; May 9, 2008; May 13, 2008
Judgment	June 9, 2008
Counsel	N Smit for the plaintiff.; CW van Huyssteen (attorney) for the defendant.

Flynote : Sleutelwoorde G

Husband and wife — Divorce — Maintenance — Spouse — Entitlement — Whether automatic — Neither spouse having automatic right to maintenance upon divorce — Court having general discretion to make 'just' award, including no award at all — Claimant spouse to provide factual basis for award before quantum and duration determined by court — Divorce Act 70 of 1979, s 7(2). H

Husband and wife — Divorce — Maintenance — Spouse — Rehabilitative maintenance — Purpose — Spouse disadvantaged by marriage entitled to restoration of economic position prior to marriage or enabled to participate normally and effectively in economic life. I

Headnote : Kopnota

In an action in the High Court for a decree of divorce and ancillary relief, the defendant (the wife) claimed maintenance for life in terms of s 7(2) of the Divorce Act 70 of 1979 — later reduced to rehabilitative maintenance for five years. Her claim was based on the contentions that the reciprocal duty of support between spouses continued even after divorce; that she was entitled to be maintained after divorce at the standard to which she became J

2009 (3) SA p90

A accustomed during the subsistence of the marriage; that, on her own, she was unable to maintain herself (and her daughter) at the standard to which they had become accustomed during the subsistence of the marriage and that the plaintiff was liable to make good her monthly shortfall. In a nutshell, she contended that she should be awarded maintenance because she needed it and the plaintiff had the ability to pay. The plaintiff opposed B the maintenance order sought, arguing that maintenance was a discretionary award and that the defendant first had to show that she should be awarded maintenance before the court would enquire into the amount and duration of the award. The parties had been married for six years when the plaintiff issued summons.

Held, as regards the defendant's entitlement to maintenance, that in terms of the C common law neither spouse had a right to maintenance upon divorce. The Divorce Act confirmed the position at common law by giving the court a general discretion to make an award which it found to be 'just', which included making no award at all. (Paragraphs [29] - [32] at 95D - I.)

Held, further, that this position was consistent with the 'clean-break' principle and with the rights enunciated in the Constitution. (Paragraphs [36] - [37] at 96D - G.) D

Held, accordingly, that the court would in the present case award maintenance to the defendant only if she had a cause of action, ie only if she founded a claim for maintenance. (Paragraph [41] at 97C/D.)

Held, further, that the defendant had laid no factual basis for her claim for maintenance. (Paragraphs [86] - [103] at 104B - 106J.)

E Held, further, as to rehabilitative maintenance, that the meaning of 'rehabilitation' was that the spouse who had been disadvantaged or disabled in some way by the marriage was enabled, through training or therapy or other opportunities, to be restored either to the economic position vis-à-vis employment which she occupied prior to the marriage, or to be reintroduced to the ability to participate effectively and profitably in normal F economic life. (Paragraph [106] at 107F.)

Held, further, that there was no evidence in the present case that the defendant was not self-supporting before the marriage and that she was less able to support herself or had suffered in her ability to support herself by reason of the marriage. She had laid no basis for her claim for rehabilitative maintenance. (Paragraphs [107] - [108] at 107H - 108A.)

G Held, accordingly, that the defendant's claim for maintenance had to be dismissed. (Paragraph [122] at 109E/F.)

Cases Considered

Annotations

Reported cases

Buttner v Buttner 2006 (3) SA 23 (SCA) ([2006] 1 All SA 429): referred to

Grgin v Grgin 1960 (1) SA 824 (W): referred to H

Heystek v Heystek 2002 (2) SA 754 (T) ([2002] 2 All SA 401): referred to

Hossack v Hossack 1956 (3) SA 159 (W): referred to

Kooverjee v Kooverjee 2006 (6) SA 127 (C) ([2006] 4 All SA 369): referred to

Lincesso v Lincesso 1966 (1) SA 747 (W): applied

Louis v Louis 1973 (2) SA 597 (T): referred to I

Pienaar v Thusano Foundation and Another 1992 (2) SA 552 (B): referred to

Portinho v Portinho 1981 (2) SA 595 (T): dictum at 597B applied

Strauss v Strauss 1974 (3) SA 79 (A): applied

Van Wyk v Van Wyk 1954 (4) SA 594 (W): distinguished

Zwiegelaar v Zwiegelaar 2001 (1) SA 1208 (SCA) ([2001] 1 All SA 261): J distinguished.

2009 (3) SA p91

Unreported cases A

Weiner v Weiner (CPD case No A 995/2004): referred to.

Statutes Considered

Statutes

The Divorce Act 70 of 1979, s 7(2): see Juta's Statutes of South Africa 2007/8 vol 5 at 2-228. B

Case Information

Action for a decree of divorce and ancillary relief. The facts appear from the judgment of Satchwell J.

N Smit for the plaintiff.

CW van Huyssteen (attorney) for the defendant. C

Cur adv vult.

Postea (June 9).

Judgment

Satchwell J: D

Introduction

[1] This is a divorce action in which both plaintiff (Mr Botha) and defendant (Mrs Botha) have claimed dissolution of the marriage. At issue is the interpretation and application of s 7(2) of the Divorce Act 70 of 1979 which confers a discretion upon the court to make a E maintenance order in favour of one spouse against the other.

[2] Two opposing approaches have been argued: on the one hand, that maintenance is automatically to be paid to a poorer spouse by reason solely of the prior existence of the marriage and financial inequality between the parties; on the other hand, that maintenance is a discretionary F award in respect of which the court must first ascertain whether or not maintenance should be granted before enquiring into the quantum and duration thereof.

[3] This judgment confirms that, taking into account so-called 'clean G break' and constitutional principles, there is no automatic right to maintenance after divorce. Entitlement to maintenance must first be shown before a court determines the quantum and duration thereof. In the present case, the independent lives established by the parties into middle age; the duration of the marriage; the employment of the claimant prior to, during and after the marriage; the claimant's H responsibilities for an adult daughter combined with their refusal to seek any assistance from the co-parent of that daughter; the absence of supporting evidence as to the costs of the marital lifestyle established and enjoyed by cohabiting parties; the extravagance of the lifestyle established by the claimant after she and her spouse had separated; the unreliability of I the amounts claimed to support this independent lifestyle, as well as the purpose for which they were claimed; the inclusion of the claimant's adult daughter in the claim for maintenance for the remainder of claimants lifetime are amongst the factors taken into account in assessing the claim for maintenance. The purpose of short-term or 'rehabilitative' maintenance is also considered. J

2009 (3) SA p92

Satchwell J

A [4] Both parties have testified. Neither has really relied upon conduct of the other party which is of such an abominable nature that it deserves mention. I am satisfied that the marriage relationship between them has irretrievably broken down and that a decree of divorce should be granted.

B [5] Mrs Botha has claimed maintenance from her husband. Initially, in her counterclaim, she claimed payment of maintenance for life in the amount of R30 000 per month. In her further particulars for purposes of trial, she abandoned that claim and gave notice that she now pursued a claim for permanent maintenance of R20 000 per month plus payment C of all medical expenses. No formal notice of amendment was ever given or moved. Finally, on conclusion of trial, her legal representative submitted that it would be appropriate for her to receive rehabilitative maintenance in the amount of R20 000 per month for a period of five years.

D [6] By reason of these differing maintenance claims - both permanent and of limited duration - it will be necessary for this judgment to consider the different approaches to be taken and the different considerations applicable to such various awards.

[7] I have been addressed by Mr Botha's counsel on the need for and E absence of compliance with the rules of court. Firstly, Mrs Botha claimed one amount as permanent maintenance and then, without formal notice or amendment of her counterclaim, simply proceeded to trial on a different quantum. Secondly, Mrs Botha claimed only permanent maintenance the first time; rehabilitative maintenance was mentioned in argument at the end of the trial. It was argued that Mr Botha F had only to meet the case as pleaded by Mrs Botha and that he could not be expected to address in his evidence the issues necessarily ensuing from a rehabilitative-maintenance claim of which he had no knowledge and in respect of which Mrs Botha had herself given no evidence.

[8] Of course, these complaints have merit. I appreciate that Mr Botha G should not be prejudiced by the failure of Mrs Botha to file appropriate pleadings or to lead evidence on her ultimate claim. I do, however, believe that a court should be astute to make every attempt to ensure that the issues essential for a 'just' decision are properly ventilated and considered in matrimonial matters which involve highly personal, H emotional and intimate issues...