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Court case: Maintenance claim by divorced spouse

Read the following court case decision regarding maintenance claims by a divorced spouse.

Kruger NO v Goss and another
[2010] 1 All SA 422 (SCA)

Division: SUPREME COURT OF APPEAL
Date: 21 September 2009
Case No: 603/08
Before: FDJ BRAND, MS NAVSA and V PONNAN JJA
Sourced by: A Street
Summarised by: DPC Harris
Parallel Citation: 2010 (2) SA 507 (SCA)
• Editor’s Summary • Cases Referred to • Judgment

[1] Family law – Divorce – Maintenance – Claim against deceased estate – Duty of support – Maintenance of widows and widowers – In terms of the common law, the duty of support which spouses owed each other, and consequently the liability for maintenance, are incidents of the matrimonial relationship. Termination of the relationship by death brings that duty to an end. Maintenance of Surviving Spouses Act 27 of 1990 allows widows and widowers, in specified circumstances, to be maintained from the estates of their late partners. This was limited legislative intervention, altering the common law to the extent set out therein.

[2] Family law – Divorce – Maintenance – Rehabilitative maintenance – Claim against deceased estate – Divorce Act 70 of 1979Section 7(2) of the Divorce Act 70 of 1979 provides that the court’s power to grant maintenance is confined not to the duration of the life of the spouse liable to pay, but rather to the life of the beneficiary spouse – Latter provision must be viewed in proper context, as common law position that termination of relationship by death brings duty of support to an end remains largely intact.

Editor’s Summary

The first respondent had been married out of community of property with the exclusion of the accrual system. Upon termination of her marriage by divorce three years later, the respondent had no capital claim against her former husband and had restricted her claim to one for rehabilitative maintenance. Her ex-spouse paid rehabilitative maintenance to her until August 2006. He passed away in September 2006 due to natural causes, having paid 33 of the envisaged 57 monthly instalments. His son, the appellant, was appointed executor of the deceased estate. The first respondent lodged a claim against the deceased estate for the remainder of the rehabilitative maintenance, which she considered due to her, but the appellant rejected the claim.

As a result, the first respondent approached the High Court for an order declaring that the estate was liable to pay her rehabilitative maintenance, and for payment of the amount allegedly due to her, with interest a tempore morae. The present appeal was noted against the upholding of the claim.

Held Section 7 of the Divorce Act 70 of 1979 provides for the division of assets and the maintenance of parties. Section 7(2) makes it clear that the court’s power to grant maintenance is confined not to the duration of the life of the spouse liable to pay, but rather to the life of the beneficiary spouse. However, that provision must be viewed in the proper context. In terms of the common law, the duty of support which spouses owed each other, and consequently the liability for maintenance, are incidents of the matrimonial relationship. Termination of the relationship by death brings that duty to an end. The Maintenance of Surviving Spouses Act 27 of 1990 allows widows and widowers, in specified circumstances, to be maintained from the estates of their late partners. This was limited legislative intervention, altering the common law to the extent

Page 423 of [2010] 1 All SA 422 (SCA)

set out therein. The common law rule remained otherwise untouched. As rehabilitative maintenance is a species of maintenance, it falls within the ambit of section 7(2) of the Divorce Act.

Concluding that the first respondent’s claim against the deceased estate should not have been upheld, the Court upheld the appeal.

Notes

For Family law see:

LAWSA Reissue (Vol 20(1), paras 359360)

DSP Cronje and J Heaton, SA Family Law 2ed Durban LexisNexis Butterworths 2005

Cases referred to in judgment

Glazer v Glazer NO [1963] 4 All SA 422 (1963 (4) SA 694) (A) – Referred to 424
Hodges v Coubrough [1991] 2 All SA 299 (1991 (3) SA 58) (D) – Applied 425

View Parallel Citation

Judgment

NAVSA JA:

[1]

The question in this appeal is whether an order for rehabilitative maintenance, pursuant to a decree of divorce, is enforceable by a spouse against her former husband’s deceased estate.

Background

[2]

The respondent, Ms Denise Emmerentia Goss, and Mr Fred Loll Stephanus Kruger married each other on 23 March 1988. The marriage was out of community of property with the exclusion of the accrual system as contemplated in Chapter 1 of the Matrimonial Property Act 88 of 1984.

[3]

Approximately 3½ years later they were divorced by order of the Pretoria High Court (Hartzenberg J). The divorce order was granted after a trial lasting a week. The respondent had no capital claim against her former husband and had restricted her claim to one for rehabilitative maintenance. The relevant part of the order reads as follows:

“2.

THAT the Plaintiff is to pay rehabilitative maintenance to the Defendant as follows:

2.1

R8 000-00 per month for the months of October, November and December 2003;

2.2

R6 000-00 per month for the next 57 months;

2.3

All payments are to be paid on or before the 3rd day of each month;

2.4

If the Defendant becomes employed and earns an income, the Plaintiff will not be entitled to advance that income as changed circumstances for purposes of an alteration of the maintenance order.”

[4]

Subsequent to the divorce proceedings and the order referred to above, Mr Kruger, to whom I shall hereafter refer as “the deceased”, duly and punctually paid rehabilitative maintenance to the first respondent until 31 August 2006. He passed away on 29 September 2006 due to natural

Page 424 of [2010] 1 All SA 422 (SCA)

causes. By this time the deceased had paid 33 of the envisaged 57 monthly instalments.

[5]

On 13 February 2007, the deceased’s son, Mr Fred Kruger, was appointed executor of the latter’s estate. The first respondent lodged a claim against the deceased’s estate for the remainder of the rehabilitative maintenance, which she considered due to her. This amounted to R144 000, which was calculated as follows: 24 months x R6 000. The executor, after taking legal advice, rejected the claim.

[6]

Not surprisingly, this led to the litigation culminating in the present appeal. During March 2008 the first respondent launched application proceedings in the Pretoria High Court against Mr Kruger, in his capacity as executor of the deceased’s estate. She sought an order

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declaring that the estate was liable to pay her rehabilitative maintenance. More specifically, she sought an order for payment of the amount of R144 000, with interest a tempore morae.

[7]

As fate would have it the matter once again came before Hartzenberg J, who granted the relief sought by the first respondent and ordered the executor, the appellant herein, to pay her costs.

[8]

It is against that order, with the leave of the court below, that the present appeal is directed.

Conclusions

[9]

Section 7 of the Divorce Act 70 of 1979 provides for the division of assets and the maintenance of parties. The relevant part of section 7(2) provides that a court, in the absence of an agreement, may:

“. . . having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the breakdown of the marriage, . . . and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.” (My emphasis.)

[10]

As can be seen, the power to grant maintenance is confined not to the duration of the life of the spouse liable to pay, but rather to the life of the beneficiary spouse. This legislative provision should, however, not be viewed in isolation. The common law viewed the duty of support which spouses owed each other, and consequently the liability for maintenance, as incidents of their matrimonial relationship. Termination of the relationship by death, brought that duty to an end.1

[11]

The Maintenance of Surviving Spouses Act 27 of 1990 (“the MSSA”) allowed widows and widowers, in specified circumstances, to be maintained from the estates of their late partners.2 Up until the promulgation

Page 425 of [2010] 1 All SA 422 (SCA)

of the MSSA there was no such entitlement. The MSSA was limited legislative intervention, altering the common law to the extent set out therein. The common-law rule remained otherwise untouched.

[12]

It can hardly be argued that before the MSSA came into being, divorced persons, whose erstwhile spouses had died, were in a more favourable position than widowed ones, giving them “rights against the estates of people no longer married to them at the time of death which widowed spouses did not enjoy against the

View Parallel Citation

estates of those to whom they were then still married”.3

[13]

I agree with the conclusion reached by Didcott J in Hodges v Coubrough,4 that section 7(2) of the Divorce Act cannot be construed so as to alter the common-law position reflected in paragraph [10] above. The following passage from that case (at 64E–F) is worth noting:

“Had [the legislature] meant something so surprising, something so startling, it would surely have spelt out the meaning. It would hardly have left such to be conveyed by the sidewind of generally worded provisions which, while accommodating the idea linguistically, dealt with it obliquely and elliptically.”

[14]

The court below held that section 7(2) was inapplicable, in that, rehabilitative maintenance is “an animal of its own”, and if ordered in the terms referred to in paragraph [3], the estate of “the maintaining spouse” is liable to pay the outstanding maintenance. On that basis the court below granted the first respondent the relief sought.

[15]

Counsel on behalf of the first respondent rightly conceded before us that if rehabilitative maintenance is to be regarded as a species of maintenance the appeal should succeed. Rehabilitative maintenance is most certainly a species of maintenance. I cannot imagine how rehabilitative maintenance can be maintenance of a kind that does not fall within the ambit of section 7(2) of the Divorce Act. For this reason alone the appeal should succeed. There are further considerations that militate against the conclusion reached by the court below, which are alluded to hereafter.

[16]

Of course a spouse is free to agree to bind his/her estate to pay maintenance after death. That is not what occurred in the present case. To allow maintenance claims of the kind encountered here against deceased estates might have all sorts of undesirable consequences. The legitimate claims to maintenance of minor children might be diminished or excluded. And, the rights of beneficiaries might be implicated. Section 3(b) of the MSSA provides that a claim for maintenance of a surviving spouse shall have the same order of preference against the estate of the deceased spouse as a claim for maintenance of a dependant child of such deceased person and that in the event of competing claims, each shall, if necessary be reduced proportionately. Theoretically, a claim for maintenance such as the present one could compete with the claim of a surviving spouse and with claims by dependant children and beneficiaries. In the absence of legislative regulation the permutations and uncertainties abound.

Page 426 of [2010] 1 All SA 422 (SCA)

[17]

Furthermore, maintenance is always relative to the means and needs of the respective spouses. In the present case the earning capacity of the first respondent was held not to be a changed circumstance on which the deceased could rely to seek a variation of the maintenance

View Parallel Citation

order. The propriety of that aspect of the order appears to be doubtful. But that issue is not before us. In any event, that portion of the order did not preclude the deceased from approaching a maintenance court to seek a variation based on a diminution in or lack of means. Remarriage was not excluded. To subject a deceased estate to assessments of this kind is not only undesirable but appears to me to offend against first principles.

[18]

If there is to be intervention of any kind it should be by the Legislature on an informed and well-considered basis. For the moment the Legislature is content with section 7(2) of the Divorce Act. So too, should we be.

[19]

The following order is made:

1.

The appeal is upheld with costs.

2.

The order of the court below is set aside and substituted as follows:

“The application is dismissed with costs.”

(Brand and Ponnan JJA concurred in the judgment of Navsa JA.)

For the appellant:

MC Erasmus SC instructed by Du Plessis Attorneys

For the respondent:

LC Matthysen instructed by Chris Kotzé and Partners

Footnotes

1

See Glazer v Glazer NO 1963 (4) SA 694 (A) [also reported at [1963] 4 All SA 422 (A) – Ed].

2

S 2(1) provides:

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.”

3

Per Didcott J in Hodges v Coubrough 1991 (3) SA 58 (D) at 64B–E [also reported at [1991] 2 All SA 299 (D) – Ed].

4

Op cit at 64E–G.

Footnote
1

See Glazer v Glazer NO 1963 (4) SA 694 (A) [also reported at [1963] 4 All SA 422 (A) – Ed].

Footnote
2

S 2(1) provides:

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.”

Footnote
3

Per Didcott J in Hodges v Coubrough 1991 (3) SA 58 (D) at 64B–E [also reported at [1991] 2 All SA 299 (D) – Ed].

Footnote
4

Op cit at 64E–G.

Parallel Citation
Page 508 of 2010 (2) SA 507 (SCA)
Parallel Citation
Page 509 of 2010 (2) SA 507 (SCA)
Parallel Citation
Page 510 of 2010 (2) SA 507 (SCA)
Parallel Citation
Page 511 of 2010 (2) SA 507 (SCA)
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