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[2012] ZASCA 19
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Harlech-Jones v Harlech-Jones (188/2011) [2012] ZASCA 19; 2012 (4) SA 164 (SCA) (22 March 2012)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case No: 188/2011
In
the matter between:
ELWYN DALE HARLECH-JONES
…............................................................
Appellant
and
SHIRLEY MARGARET HARLECH-JONES
…..........................................
Respondent
Neutral
citation:
Harlech-Jones v Harlech-Jones
(188/2011)
[2012]
ZASCA 19
(22 March 2012)
Coram:
Mthiyane DP, Cloete, Mhlantla and Leach JJA and Boruchowitz AJA
Heard:
6 March 2012
Delivered:
22 March 2012
Summary:
Divorce ─ maintenance ─ wife
cohabiting with and being fully maintained by another man ─
this state of affairs
lasting for years before the divorce and
intended to be permanent ─ wife failing to show she was
entitled to maintenance
from her husband on divorce.
___________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from:
Eastern Cape High Court, Port
Elizabeth (Schoeman J sitting as court of first instance):
The appeal succeeds and the order of the high court is
amended to read as follows:
‘
The marriage between the
parties is dissolved by decree of divorce.’
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH JA (MTHIYANE DP, CLOETE AND MHLANTLA JJA AND
BORUCHOWITZ AJA concurring.)
[1] The appellant appeals against an order obliging him
to pay R2 000 per month to the respondent, his wife of almost 29
years,
upon dissolution of their marriage. His principal objection
against the order lies in the fact that for some eight years prior to
the divorce the respondent had been cohabiting with another man.
This, the appellant contends, disentitles her from receiving
maintenance from him. In the alternative, the appellant suggested the
sum of R2 000 per month is in any event too high given his
straitened
finances.
[2] The parties were married out of community of
property in December 1972. Two sons, both now majors and
self-supporting, were
born from their union. In December 2000, after
28 years of marriage, the appellant left the matrimonial home in Port
Elizabeth
as he had formed a relationship with another woman and had
decided on a new life. He purchased another residence in the city,
but
his new relationship also failed and within six months he had
formed an intimate relationship with another man with whom he has
since been cohabiting. They left Port Elizabeth and at the time of
the trial in the high court were living in Steytlerville, a
small
town in the rural areas of the Eastern Cape.
[3] The respondent was friendly with a married couple,
Tim and Diana Smith, whom she had come to know some years previously
when
their sons attended the same school. In April 2001, shortly
after the appellant had moved out of the common home, Diana Smith
passed
away. In September 2001 (by which time the appellant was
already cohabiting with his male partner) a relationship began to
blossom
between the respondent and Tim Smith. With the passage of
time the relationship became more intimate and, in April 2003, the
respondent
moved into both Mr Smith’s home and bedroom, and
they thereafter cohabited as man and wife. During the first two years
that
they had lived together the respondent’s youngest son,
Mark, who was at university at the time, lived with them as well.
[4] In the meantime, in February 2003, the respondent
issued a divorce summons out of the Port Elizabeth High Court in
which, as
ancillary relief, she claimed payments of maintenance for
both Mark and herself, and payment of a sum equivalent to one half of
the value of the appellant’s estate. The parties thereafter
entered into settlement negotiations and, in September 2003,
some six
months after the appellant had commenced to live with Mr Smith, a
deed of settlement was concluded in which the appellant
undertook to
pay the respondent R3 000 per month as maintenance until her death or
remarriage and to retain her as a beneficiary
on his medical aid
scheme. In addition the appellant also agreed to make various
payments in respect of Mark’s upkeep and
to pay various
monetary amounts.
[5] Unfortunately for all concerned, the appellant had
run into financial difficulties and was sequestrated the day before
the divorce
hearing. As a result, the judge hearing the matter
indicated that he would not be prepared to make the terms of the
settlement
an order of court, apparently being of the view that
certain of its provisions could not be enforced by reason of the
appellant’s
sequestration. As a result the divorce did not
proceed and remained unresolved. The appellant continued living with
his partner
and the respondent cohabiting with Mr Smith. Moreover,
pursuant to the sequestration the respondent’s assets were
frozen
in terms of the
Insolvency Act 24 of 1936
. This led to
litigation between the appellant’s trustee on the one hand and
the respondent on the other, which only ended
late in 2007 when a
settlement agreement was concluded which led to her assets being
released. Despite this, the divorce proceedings
were held in abeyance
for several years. However, by the time the parties eventually took
the matter to court (in February 2010)
they had settled all
proprietary claims and the only outstanding issue the high court was
asked to decide was the question of the
respondent’s claim for
maintenance.
[6] After they separated, the appellant initially
retained the respondent as a beneficiary on his medical aid scheme.
He undertook
to continue to do so in the settlement agreement which
was not implemented due to his sequestration. Unfortunately, he
removed
her as a beneficiary of the scheme in 2006 and, when the
respondent was diagnosed with cancer of the jaw in April 2009, she
was
personally obliged to pay for the urgent surgery she required. By
the time of the trial in February 2010, the respondent had spent
almost R180 000 on treating her cancer and was due to undergo further
surgery in the near future to cover a gaping hole in her
cheek, an
unfortunate consequence of the treatment. The anticipated surgery was
to be carried out at a state hospital, rather than
at a private
institution, but the future cost of treating her condition was not
known.
[7] When the respondent first moved in with Mr Smith,
she insisted upon, as she put it, ‘paying her own way’,
and did
in fact pay him a total of R25 000 in respect of
accommodation between May and November 2003. However, after her
assets were frozen
she had to rely on Mr Smith’s generosity,
and he supported and maintained her (and Mark for the two years he
lived with them)
although the appellant did make some contributions
towards Mark’s education expenses. That continued after the
respondent’s
assets were restored in late 2007, but she does
not appear thereafter to have made any regular or substantial
contribution towards
the expenses of the joint household she shared
with Mr Smith. She seems in the main to have used her assets to pay
for certain
personal items of expenditure, such as entertainment, her
hairdresser, her cell phone account and an amount she pays one of her
sons to reimburse him for having her as a dependant on his medical
aid. She also made odd contributions by purchasing household
items
such as a hi-fi and a washing machine.
[8] Although the evidence establishes that when the
respondent initially moved in with Mr Smith it was regarded as a
temporary arrangement,
the relationship between them matured over the
almost eight years that they had lived together before the trial. By
then they both
regarded their relationship as permanent and neither
had any intention of terminating it. Mr Smith supported the
respondent unconditionally
and was prepared to continue to do so
indefinitely. By the same token, not only was the respondent being
maintained by him but
she, reciprocally, assisted him in his
business, for which he paid her a small gratuity.
[9] Importantly, the first time the respondent sought to
recover any maintenance from the appellant after the divorce
proceedings
were instituted, was in February 2010 when she brought
proceedings under Uniform
rule 43
seeking maintenance
pendente
lite
(an application which failed when Hartle AJ refused the
order sought as she concluded that there was no reasonable prospect
of
the respondent recovering maintenance when the matter came to
trial). And it is not without significance that when the opportunity
to settle the divorce action arose in early 2008 (after her assets
had been restored to her), the respondent refused to sign a
settlement agreement; not on the basis that it contained no
maintenance for her, but because it made no provision for the
appellant
to reimburse Mr Smith in any way for the support he had
provided Mark. This all indicates the relationship she had with Mr
Smith
was of such a nature that she neither required nor sought
maintenance from the appellant.
[10] From this it is clear, as was
indeed common cause at the trial, that the respondent and Mr Smith
had, for almost eight years,
lived together ‘as man and wife’
in that, although they were not formally married, they had lived
together in the same
home, had a common household which they
maintained and to which they contributed, and maintained an intimate
relationship.
1
Put differently, they lived together
in a fixed and stable relationship in which they mutually regarded
each other as a permanent
partner.
[11]
Relying
upon judgments such as
Dodo v Dodo
1990 (2) SA 77
(W) at 89G;
Carstens
v Carstens
1985 (2) SA 351
(SE) at 353F;
SP
v HP
2009 (5) SA 223
(O)
para10 it was argued, both in the high court and in the appellant’s
heads of argument, that it would be against public
policy for a woman
to be supported by two men at the same time. While there are no doubt
members of society who would endorse that
view, it rather speaks of
values from times past and I do not think in the modern, more liberal
(some may say more ‘enlightened’)
age in which we live,
public policy demands that a person who cohabits with another should
for that reason alone be barred from
claiming maintenance from his or
her spouse. Each case must be determined by its own facts,
2
and counsel for the appellant (whom I must hasten to add
had not been responsible for the preparation of the appellant’s
heads
of argument) did not seek to persuade us to accept that the
mere fact that the respondent was living with Mr Smith operated as an
automatic bar to her recovering maintenance from the appellant.
Instead he argued that the respondent had failed to prove that
she
was entitled to a maintenance order in her favour. It is to that
issue that I now turn.
[12] Under the common law, the reciprocal duty of
support existing between spouses, of which the provision of
maintenance is an
integral part, terminates upon divorce. This might
well cause great hardship and inequity particularly where one spouse,
during
the subsistence of the marriage, has been unable to build up
an estate and has reached an age where he or she is unable to
realistically
earn an adequate income ─ the classical case
being that of a woman who has spent what would otherwise have been
her active
economic years caring for children and running the joint
household. This potentially iniquitous situation is alleviated by
s 7
of the
Divorce Act 70 of 1979
.
Section 7(1)
which provides for a
court on granting a decree of divorce to make a written agreement
between the parties in regard to the payment
of maintenance by one
party to another an order of court ─ while in other cases
s
7(2)
provides:
‘
In the
absence of an order made in terms of subsection (1) with regard to
the payment of maintenance by the one party to the other,
the court
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 break-down of
the marriage, an order in terms of subsection
(3) 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
.’
[13] It is trite that the person claiming maintenance
must establish a need to be supported. If no such need is
established, it
would not be ‘just’ as required by this
section for a maintenance order to be issued. It is on this issue
that the
respondent’s claim must fail. Both she and the
appellant had moved on with their respective lives and had formed
intimate
and lasting relationships with others. As I have stressed,
for almost eight years prior to the divorce hearing the respondent
had
lived as another man’s wife: a man who provided for her
needs, put a roof over her head and in all factual respects treated
her as his partner in life. This was a situation which both she and
Mr Smith regarded as permanent and which they intended would
remain
so.
[14] The respondent was therefore being fully maintained
by her new partner in life, and had no need for that maintenance to
be
supplemented in any way. This is borne out not only by the
financial figures she produced indicating the amount of maintenance
Mr Smith was spending on their joint household but also by her
failure to claim maintenance from the appellant until, almost as
an
afterthought,
rule 43
proceedings were launched in February 2010. As
already mentioned, it is also shown by her attitude in refusing to
sign the proposed
settlement agreement earlier offered to her solely
as it made no provision for Mr Smith to be reimbursed for supporting,
not her,
but her son Mark. Accordingly, the respondent’s claim
simply fails at the first hurdle as she failed to show that she
actually
required maintenance from the appellant.
[15] It is apparent from the above that, the high court
erred in concluding that the respondent had in fact established a
claim
for maintenance against the appellant. The appeal against the
maintenance order must therefore succeed.
[16] Turning to the question of costs, although the
appellant has succeeded in this appeal, counsel for the appellant
informed us
that the appellant did not seek to have the respondent
pay the costs of the appeal. Nor did he seek to rely upon a relevant
open
tender made under Uniform rule of court 34 on 29 July 2009 to
argue that the respondent should pay the costs below from that date.
Instead he suggested that no order should be made in respect of the
high court proceedings. This was a commendable attitude given
the
length and history of the marriage and one which I understood the
respondent’s attorney accepted would be appropriate
if the
appeal was to succeed. In regard to the order of the high court, this
can be brought about by merely deleting paragraphs
2 and 3 of the
order it made, leaving only the divorce decree extent.
[17] In the result the following order will issue.
The appeal succeeds and the order of the high court is
amended to read as follows:
‘
The marriage between the
parties is dissolved by decree of divorce.’
______________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: A Beyleveld SC
Instructed by:
Spilkins Inc, Port Elizabeth
Symington & De Kok, Bloemfontein
For Respondent: G J Friedman (Attorney)
Instructed by:
Friedman Scheckter, Johannesburg
Matsepe Inc, Bloemfontein
1
Cf
Drummond v Drummond
1979
(1) SA 161
(A) at 167A-C.
2
In
this regard the various English cases to which we were referred,
such as
Grey v Grey
[2009] EWCA Civ 1424
and
K v K
(2006) 2 FLR 468
(FD);
[2005] EWHC 2886
(Fam) were of no meaningful
assistance, set as they are in a statutory matrix which differs from
that of this country.