Portinho v Portinho

• Judge: Van Dijkhorst J
• Judgment Date: 04 February 1981
• Hearing Date: 21 January 1981
• Court: Transvaal Provincial Division

Van Dijkhorst, J.:

In this uncontested divorce action the plaintiff claims from her husband a decree of divorce and certain ancillary relief. Inter G alia the plaintiff claims maintenance for herself at the rate of R1 per year. The plaintiff has proved her case for the other relief claimed and it is not necessary to deal with the evidence led in support thereof.

The only question which arises is whether a token award of maintenance for H the plaintiff should be made. The plaintiff is employed and financially independent from the defendant although there is a large difference between their respective incomes. They have been married for nine years and according to her evidence the break-down of this marriage was caused by the behaviour of the defendant. There are three children born of the marriage and maintenance will be awarded in this respect as claimed.

Counsel for the plaintiff contended that a token award of maintenance for the plaintiff should be made to preserve her right to maintenance. I queried the correctness of this approach.

Van Dijkhorst J

A wife had at common law no right to maintenance upon divorce. Schultz v Schultz 1928 OPD 155; R v Blundell 1943 TPD 146; Strauss v Strauss 1974 (3) SA 79 (A) A at 93H. Such right to maintenance was created by the Legislature in the Matrimonial Affairs Act 37 of 1953. It provided in s 10 that the Court granting a divorce may, notwithstanding the dissolution of the marriage, make an order against the guilty spouse for the maintenance of the innocent spouse.

B This provision was generally interpreted to mean that the innocent plaintiff was not by reason thereof now entitled to claim maintenance as of right, but that the Court was given a general discretion. Lincesso v Lincesso 1966 (1) SA 747 (W) at 748; Grgin v Grgin 1960 (1) SA 824 (W) at 828C. In Van Wyk v Van Wyk 1954 (4) SA 594 (W) at 595B - D the Court dealt with this discretion as follows:

C "Before returning to the merits of this application it is relevant to point out that s 10 does not confer a right upon the innocent spouse - what it does is confer a discretion upon the Court. The question arises as to the circumstances in which the Court would exercise its discretion in favour of a plaintiff, the innocent spouse. I do not propose to lay down any general rules today but it seems to me that it could hardly have D been the intention that maintenance should be granted almost as a matter of course. The discretion...