A divorced woman has failed in her bid to have her ex-husband compelled to continue paying her R16,000 a month for life after the high court in Bloemfontein found that she has another partner, who is supporting her.
The court found that the woman had failed to explain why she was entitled to continue receiving the maintenance payments she was granted in the divorce settlement after her ex-husband told the court that she was in a relationship with a man who lived with her at weekends, had stayed with her in lockdown, took her away on holidays and had bought their daughter a pony and a cellphone.
The woman’s appeal came after her ex-husband applied to the maintenance court to have his child support payments reduced and his maintenance obligations scrapped. During court arguments the ex-husband abandoned his request for a lowering of child support.
The court found that he had provided enough evidence to show that his ex-wife was “cohabiting with another man” and that this triggered a condition in the divorce settlement that maintenance payments could be terminated in such an instance.
According to the “dum casta clause”, the ex-husband “must pay maintenance to the plaintiff up until her death, remarriage or cohabitation with another man, whichever event occurs first in the amount of R16,000 per month”.
The court found that the clause was designed to allow the husband to stop paying maintenance should his ex-wife enter a permanent relationship and enjoy the advantages of marital support “without attracting the consequences of a marriage”.
It was up to the ex-husband to prove the existence of such a relationship.
The court was told that about two months after the divorce, the ex-wife entered a relationship with “one Mr Coetzee” in late 2016.
“The relationship between Mr Coetzee and the appellant is of an intimate nature, and they share the same room and bed when he frequents the applicant’s residence in Bethlehem,” the court held.
“Mr Coetzee, although working in Gauteng during the week, spends his weekends, holidays and free time with the appellant at her residence in Bethlehem and spent over two weeks at the appellant’s residence during the national lockdown.”
The court said Coetzee contributed to her household costs, regularly took the woman and her daughter out for dinner and took them away on holidays “to destinations such as Mozambique, for which he pays”.
Coetzee also drove an Isuzu bakkie that had been financed by the ex-husband but paid the instalments into the account of the ex-wife.
“Additionally, various items belonging to Mr Coetzee are stored at the appellant’s residence in Bethlehem which include his Venter trailer, his braai stand and various canopies,” the court said, adding Coetzee’s clothes were regularly seen hanging on the washing line at his lover’s home.
“This particular aspect of the evidence was disputed by the [ex-wife]. She testified that the only male items of clothing hung on the washing line belonged to her son-in-law, who could not return to China and lived with her for two weeks in lockdown,” the court noted.
It was shown that Coetzee had bought the divorced couple’s minor daughter a horse and paid for her cellphone. All of this, the court found, indicated that Coetzee and the ex-wife were indeed in an intimate relationship.
In weighing the evidence, the court found that the ex-husband's version was most likely true. “On the probabilities, Mr Coetzee’s employment in Gauteng is the sole reason he is only able to spend his weekends, holidays and free time with the appellant at her residence situated in Bethlehem. In today’s day and age, it can hardly be contended that it is uncommon for individuals to live in one place and work at another. But for his employment Mr Coetzee would on the probabilities live at the appellant’s residence during the week too,” the court said.
“The appellant’s explanation that the male clothing items hung on the washing line belonged to her son-in-law does not bear scrutiny, as it only accounts for a paltry period of two weeks in circumstances where Mr Coetzee and the appellant have been in a relationship for several years.”
The court dismissed the woman’s application for continued maintenance payments and ordered her to pay all the costs of the case, including delays caused by her “unsuccessful attempts to reconstruct the record for purposes of appeal”.
