Claassens v Claassens

• Jurisdiction: South Africa
• Judge: Didcott J
• Judgment Date: 29 August 1980
• Hearing Date: 09 May 1980
• Court: Natal Provincial Division

Didcott J:

The applicant was once the respondent's wife. Their marriage H came to an end in 1975, when they were divorced. The divorce suit had been defended at first. Eventually, however, it was settled. The agreement of settlement obliged the respondent to pay the applicant R15 000 in cash and, until her death or marriage, R80 a month as maintenance. She consequently asked the Court for a maintenance order in those terms and, when the divorce was granted, obtained one.

Not having remarried, the applicant now wants her alimony increased. Statutory provision for that existed at the time it was awarded, and still

Didcott J

does. The legislation then in force was the Matrimonial Affairs Act 37 of 1953. Section 10 (1) empowered the Court to vary any maintenance order. A So nowadays does its replacement, s 8 (1) of the Divorce Act 70 of 1979. The power extends, in terms of s 8 (3), to such orders as the applicant's, issued before the statute took effect. It is a wide one, generally usable to correct imbalances which have developed.

The applicant nevertheless has a problem. It is that, as part of the divorce settlement, she freely and deliberately waived the claim to B additional alimony she now has in mind. The agreement was explicit on the point, and quite unequivocal. Having fixed the monthly sum payable to her as maintenance, it stipulated that she -

"... will not be entitled to apply for an increase in this amount".

Whether the waiver binds the applicant is the question to be decided in the present litigation, and the only one. To clear the way for the C proceedings under the Act which she contemplates, she seeks an order on notice of motion declaring it to have been null and void. The respondent opposes her application.

By raising the issue thus, the applicant has isolated it from the merits D of her claim. This sensible course has conserved costs. As a result of it the parties have done without evidence and contentions on the details of their respective financial positions and the changes these have undergone since 1975. None of that matters for the time being.

Nor do the case's other facts, beyond those few mentioned already. I say this because the applicant's repudiation of the waiver does not depend on special circumstances, or on any twist in her litigation with the E respondent. She invokes public policy instead. This, she maintains, has set its face against the renunciation of claims like hers. It is on that score that her surrender of it is said to have been invalid, intrinsically and from the beginning.

F I know of no reported case on all fours exactly with the applicant's, in this country at any rate. Public policy on maintenance for divorcees and waivers affecting it is, however, a topic which our Courts have considered from time to time. Such has happened in a variety of situations, and with conflicting results.

The question has been canvassed most frequently in divorce actions G themselves, and in the context of requests for agreements settling these to be made orders of Court.

Swart v Swart 1960 (4) SA 621 (C); Maartens v Maartens 1964 (2) SA 104 (N) and, as far as one can tell from a terse report, Sanan v Sanan 1978 (1) SA 98 (W) were all cases of that kind in which the wife had waived maintenance altogether, for the future as well as the present. So was H Aubrey v Aubrey 1960 (4) SA 624 (C). But it had the extra feature of a lump sum payable to the wife in lieu of alimony and in settlement of all claims to it. Then one notices Jones v Jones 1963 (2) SA 193 (SR); Gawith v Gawith 1966 (3) SA 596 (C); Knight v Knight 1967 (1) SA 40 (C) and Cilliers v Cilliers 1977 (1) SA 561 (O). The agreement in each had provided for the wife's maintenance after the divorce. A rider had been added, however, depriving the wife in Cilliers' case of any right ever to seek an increase, and removing or curtailing the right of the husband in the remaining three to apply for a reduction.

Didcott J

The Jones and Cilliers waivers were both held to have infringed public policy, and neither was sanctioned. The opposite view was taken of the A waivers in the Swart, Aubrey, Gawith and Sanan cases. Without qualification, the agreements embodying them were all made orders of Court.

The cases of Maartens and Knight went off in another direction. The judgment in each had an obiter dictum on the validity of such waivers. No B qualms about these were felt in Maartens' case. The Knight judgment, on the other hand, confessed to "grave doubts". But the Court was not firmly convinced that the Swart, Aubrey and Gawith decisions had been wrong. Since these were its own, they consequently bound it. It nevertheless excluded the waiver in question from the parts of the agreement it C endorsed. This it did in the exercise of its discretion, after taking account of the litigation's particular circumstances. The agreement had required the husband to maintain his children as well as his wife. An irreducible commitment to her might have prevented him in times of want from doing his duty to them. The waiver was therefore seen to be potentially harmful to their interests. Though perhaps not void, it was D branded as "undesirable" on that account and thought unworthy of judicial approval. Nor, as it happened, was the Maartens agreement converted into an order. The reason was simple. It had not provided for maintenance. Only an agreement which did, the Court concluded, lent itself to the process. It followed that the waiver's validity was not an issue that had to be decided.

E The same, I believe, was true of the whole line of cases, even those concerned with agreements which had provided for maintenance.

The 1953 Act governed them all. The power to transform agreements on the subject into orders came from s 10 (1) (b). It declared that:

"The Court granting a divorce may... make any agreement between the F spouses for the maintenance of one of them an order of Court." This could hardly have meant that an entire agreement might be made an order once a lone stipulation for the payment of maintenance was found lurking amongst a host of terms, the rest dealing with topics of all sorts not covered by the Act. The better construction was surely one allowing an agreement to be made an order, in so far as it was an agreement for maintenance. All G that could be turned into an order, in other words, were its actual provisions for maintenance. Such an interpretation would have put no real gloss on the section's language. Each separate term of an agreement is after all a separate agreement, notionally at any rate. It is certainly not inappropriate to call it one.

What all this signifies, if correct, is that the Court had no power in H any of the cases cited to make the waiver part of its order, whether or not such was valid. All the waivers, it is true, related to maintenance. Some, to be sure, qualified agreements for maintenance. But none amounted in itself to an agreement for maintenance.

Nor, in any event, does there seem to have been much point at that stage in going into the legal force of the waiver. The question did not really arise. The lack of any claim for alimony in the cases in which it had been waived altogether meant that, the last opportunity for an award being thus lost, so in effect was the right to such. The waiver would have

Didcott J

come into the picture had the wife repudiated it and claimed maintenance. As things were, it merely explained the claim's absence. And the answer A to the question in all the other cases could have been left to the subsequent proceedings, if any, brought to enforce the right said to have been waived. I shall come presently to three reported cases, each an example of such litigation, in which the waiver was freely challenged, although the agreement incorporating it happened to have been made an order of Court at the time of the divorce. Nobody appears to have thought B on any of these occasions that the waiver's validity had been settled once and for all when the order was granted, by implication at least, with the result that the matter was res judicata. Instead the issue was debated and considered as if nothing like that had occurred. I venture no positive opinion on the subject, I hasten to add. I merely note that, if it remained an open question whether the waiver was void, its prior C endorsement had served no purpose at all. What had accounted for the exercise no doubt, and made it look relevant, was the popular habit in divorce actions of turning agreements of settlement into orders of Court, by rote. That has never been the general practice in Natal, for as long as I can remember at any rate. Such agreements are frequently a medley of D provisions. Some have already been implemented by the time of the divorce trial. Others cannot be translated into judicial commands because no executory obligations emerge from them. Or the obligations they encompass, while executory, are of such a nature that specific performance E would never be decreed in an action on the contract. The effect of the Court's wand waved over provisions like these is far from clear. The problem is avoided in this Province. Here, as a rule, the Court simply orders the parties on request to do what they have promised, to the extent that such lends itself to a command, falls within its jurisdiction, and is otherwise unobjectionable. It spells this out, by and large choosing its F own words. Seldom does it even mention the agreement. But the parts used as material for its order are converted into one in that way, no less surely and much more precisely. For the rest, the litigants must look to their contractual rights, which hold no immediate interest for it. That is what happened, for instance, when the applicant got her divorce. Her G waiver drew no attention then. It may well be the only course authorised nowadays, under the heading of maintenance...