Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance

• Jurisdiction: South Africa
• Author: Bonthuys, E.
• Published date: 26 January 2021
• Pages: 377-397
• Date: 26 January 2021

377

PUBLIC POLICY IN FAMILY CONTRACTS,

PART I: AGREEMENTS ABOUT SPOUSAL

MAINTENANCE

Elsje Bonthuys

BA LLB LLM (Stell) PhD (Cantab)

Professor of Law, University of the Witwatersrand

Abstract

Although the reciprocal duty of support between spouses is an invariable

common-law consequence of marriage, spouses may extend the duty of

support beyond the ma rriage by way of contract. Courts h ave also recognised

contractual rights to su pport between u nmarried intimate partners and

spouses in Muslim marr iages. All contracts, including those between family

members, must be legal and public policy plays a role in determining the

legality of contracts for spousal and partner su pport. This article evaluates

changes in public policy about sp ousal maintenance, comparing agreements

which establish a duty of support outside of the common law, agreements

which extend the duty of support after the end of the spousal relationship

through death or separation , and agreements which waive, vary or othe rwise

limit duties of spousal sup port. The art icle identies cer tain shifts in p ublic

policy governing spousal maintenance but argue s that the jurisprudence

is characterised by inconsistency and contradictions, par ticularly in the

extent to which it embodies the protection of fundamental rights and the

advancement of gender e quality. By way of contrast with the cases extending

contractual duties of support to Muslim mar riages and unmarr ied intimate

relationships which strongly emphasise equality and non-discrimination,

cases dealing with contract s regulating post-divorce maintenance resta te

pre-constitut ional precedents ba sed on formalistic and posit ivist reasoning.

Another discrepancy arises betwee n cases extending the duty of support

after the death of the maintena nce debtor and cases e xtending the duty of

support after divorce or separation. The article proposes a clear evaluation

of public policy in relation to these contracts, which balances the interests of

contractual autono my with the interests of fairness and equality.

Keyword s: public policy, duties to provide spousal support, contracts

establishing duties of su pport, gender equality, maintenance

1 Introduction

The rst half of the twentie th century saw a l ively sequence of cases on the

legality of marriage broker age contracts – contr acts to introduce p rospective

marriage par tners to each other in ret urn for payment to professional marriage

brokers or specialised newspap ers like the “Matrimonial Post”. At rst, these

(2020) 31 Stell LR 377

© Juta and Company (Pty) Ltd

contracts were held to be contr ary to public policy, and thus invalid, becau se

of the dangers of unsuitable and u nhappy marriages, the pote ntial exploitation

of gullible people (specically women), and the need to safeguard the unique

social and moral statu s of the instit ution of marriage.1 By the 1980s the alarm

surroundi ng this commercial pr actice had receded so fa r that a majority in

the Zimbabwean High Cour t labelled the view that money should not taint the

conclusion of marriages as “senti mental”, and pointed to the role that money

has always played in marriage, i ncluding in dowries and mar riage settlements.2

In 1916, the Cape Provincial D ivision declared a contract to pay a pr ivate

investigator to obtain sur veillance evidence of adultery, on condition that the

evidence leads to a divorce order, invalid for being cont rary to public policy.3

In 1907, a contract to insure a buildi ng used as a brothel, which the cour t

described as “ the haunt of all manner of depr aved and degraded p ersons, and

the scene of drun kenness and rioti ng at all hours of the night”, was deemed

illegal because insu ring the building was regarded as being closely associat ed

with the sale of sex.4

We nd these old ca ses a musing because of the f undamental changes

in practices and beliefs ar ound sex, marr iage and family formation i n

the interveni ng century. Public policy also evolves over time in step w ith

these changing views and pr actices.5 As public policy develops, older legal

remedies, like the delict ual action against a t hird part y for adultery and the

contractua l claim for breach of engagement, disappear.6 On the othe r hand,

new remedies emerge while exist ing remedies such as the dep endant’s claim

for loss of support are expanded to for merly excluded families li ke unmarried

intimate par tners and people married in ter ms of Islamic law.7

This art icle evaluates the changes in public policy in agre ements about

spousal maintenance,8 both during the subsistence and a fter the ter mination

of intimate relationships. Althou gh the article also refers to t he parental duty

to maintain child ren, it focuses mainly on spousal mainten ance, which differs

in many respects f rom the parental duty to maintain.

This topic forms par t of the bigger issue of the use of contracts wit hin

family law. South African fami ly law, unlike some common-law systems,

relies relatively heavily on contractua l ordering between sp ouses or

partners and gives them wide lat itude to agree upon nancial issues. It is a

fundament al requirement that al l contracts must be legal. Cont racts can be

1 King v Gray 1907 24 SC 554 557-558; Hurwitz v Taylor 1926 TPD 81 82-83 See also Pillay v Yeanamoothoo

1917 NPD 155

2 Olsen v Stand aloft 1983 2 SA 668 (ZS) 675-676 T he same result was reached in A B Wall’s Marria ge

Bureau v Pienaar 1986 2 SA 165 (T)

3 Kiely v Dreyer 1916 CPD 602

4 Richards v Guardian Assurance Co 1907 TH 24

5 Stembridge v Stembridge 1998 2 All SA 4 (D) 14; Olsen v Standaloft 1983 2 SA 668 (ZS) 677A adds t hat

what is consider ed contrar y to public policy in one s ector of society m ay be perfectly ac ceptable in othe rs

6 DE v RH 2015 5 SA 83 (CC); Van Jaarsveld v Bridg es 2010 4 SA 558 (SCA)

7 Du Plessis v Road Ac cident Fund 2004 1 SA 359 (SCA); Paixão v Road Accid ent Fund 2012 6 SA 377

(SCA); Amod v Mu ltilateral Motor Vehicle Ac cidents Fund 1999 4 SA 1319 (SCA)

8 In this ar ticle, the terms “s pousal mainte nance” and “spous al duties of suppor t” are used, des pite the fact

that this dut y has now been exte nded to unma rried inti mate relationsh ips The reas on is that no other t erm

has yet emerged a nd “spousal or other i ntimate part ner maintena nce” appears clum sy

378 STELL LR 2020 3

© Juta and Company (Pty) Ltd