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The rescission of divorce orders for purposes of claiming spousal maintenance

The reciprocal duty of support between spouses is one of the invariable consequences of marriage in South African law. This legal duty operates automatically by operation of law as soon as the marriage is concluded and it cannot be excluded by the parties.

The common law reciprocal duty of support between spouses comes to an end on the termination of the marriage, either by death or by divorce (see Schutte v Schutte 1986 (1) SA 872 (A)). The duty of support between spouses can be extended by court in terms of s 7 of the Divorce Act 70 of 1979 post-divorce at the dissolution of the marriage (see Zwiegelaar v Zwiegelaar 2001 (1) SA 1208 (SCA)). Parties can waive their right to claim spousal maintenance on divorce, but cannot do so when the marriage is concluded (see ST v CT 2018 (5) SA 479 (SCA)). An ex-spouse cannot lay a claim for spousal maintenance against a former spouse if an order for spousal maintenance was not made in terms of s 7 when their marriage was dissolved. In recent times, our courts have adopted the approach that in applications for the rescission of divorce orders granted in default, the divorce order should not be rescinded as that may have far reaching consequences to the parties. The courts have expressed the view that the effect of setting aside a divorce order would in the eyes of the law, automatically result in the parties returning to the state of matrimony and changing their status.

The problem, however, arises where a divorce order was granted in default of a party who seeks to claim spousal maintenance. What compounds the problem even further is that s 7 of the Divorce Act provides that a claim for spousal maintenance can only be granted on divorce. This suggest that where a divorce order was granted in default, an applicant who wants to claim spousal maintenance has to seek a rescission of the whole divorce order in order to claim spousal maintenance as envisaged in s 7 of the Divorce Act. This creates a problem in that the automatic consequences attendant to a marriage in community of property would operate with immediate effect not by choice but by the operation of law if the rescission of the divorce order is granted.

The High Court in Togo v Molabe and Another (GP) (unreported case no 29059/14, 26-7-2016) (Wentzel AJ) was faced with a similar situation. This article examines the manner in which the court was constrained in dealing with an application for the rescission of a divorce order, as well as the ancillary orders, which were granted in the absence of the applicant. More importantly, this article examines how the court battled to balance the applicant’s right to rescission of the whole divorce order vis-à-vis her right to claim spousal maintenance on divorce against the general approach adopted by the courts not to unscrambled a divorce order. This article also examines the divergent views expressed by the Western Cape Division of the High Court in Cape Town (WCC) and the Gauteng Local Division of the High Court in Johannesburg on whether or not a claim for maintenance pendente lite in terms of r 43 of the Uniform Rules of Court can survive a decree of divorce. It is argued that the approach of the WCC to the effect that pending the finalisation of a divorce action an order in terms of r 43 survives a decree of divorce to the extent that the issues regulated thereby remains unresolved is more expedient and preferable. It will be argued that this authoritative pronouncement should apply to claims for spousal maintenance in cases where the divorce was granted in default and the issues regulated by the divorce order remain unresolved.

Summary of the facts
In Togo, the applicant and the respondent were married in community of property. The respondent acting in person issued divorce summons against the applicant in the High Court. The applicant also acting in person defended the matter and sought to file a notice to defend by e-mailing same to the respondent and e-mailing same to the registrar of the court. For some unknown reasons, the applicant’s notice of her intention to defend did not find its way into the court file. The respondent ignored the notice to defend forwarded to him by e-mail and proceeded to have the matter enrolled for hearing on an unopposed basis. The presiding judge dealing with the matter finalised the matter on the basis that it was an undefended divorce. The court granted the orders sought by the respondent in the summons.

The order granted by the court made provision for the maintenance of the minor children. The order was silent on the payment of spousal maintenance and of the division of the joint estate. Instead, the court simply ordered that each party would retain their own assets. The applicant brought an application for the rescission of the order and averred that the order for the maintenance of the minor children granted by the divorce court was hopelessly insufficient. The applicant further averred that the respondent proceeded to obtain a decree of divorce and other ancillary relief concerning maintenance and the division of the parties’ assets on an unopposed basis full knowing that the applicant intended to oppose the action and had e-mailed a notice of intention to oppose to the respondent and filed same at the court.

The respondent opposed the application and averred that as service of the notice of intention to oppose via e-mail was not proper service in terms of the Uniform Rules of Court, he was entitled to ignore it. He did not believe that he had any duty to draw this fact to the attention of the court. At the time the application for rescission was brought, the plaintiff had remarried. This wife was not joined to the current proceedings.

In considering the application, the court was alive to the fact that the rescission of the divorce order would have far reaching consequences in that it would affect the status of the parties, which was not desirable. The court also noted that this would also have disastrous consequences for the respondent who had since remarried. The court noted that a party may not have two valid civil marriages and the inevitable result would be to void the respondent’s marriage to his new wife. The court quoted with approval the decision in M v M (GP) (unreported case no 52110/2007, 27-5-2011) (Mngqibisa-Thusi J) in which the court left the status of the parties unchanged and only rescinded the proprietary consequences of the decree of divorce accepting that the marriage between the parties had irretrievably broken down and that both parties wished to remain divorced.

More importantly, the court in Togo stated that the impugned divorce order granted had severely curtailed the applicant’s rights to spousal maintenance and division of the joint estate to which she was entitled by virtue of their marriage in community of property. The court stressed the fact that if spousal maintenance is not claimed at the time of the divorce, it is forever forfeited and cannot be claimed at a later stage, even in changed circumstances. To this end, the court warned the applicant that should the court adopt the approach, which was applied in M v M, this may have the result that she would continue to forfeit her entitlement to spousal maintenance as this must be claimed at the time of the divorce. The applicant consented to such relief and the court eventually rescinded the ancillary orders and left the decree of divorce intact.

Discussion
The rescission of divorce orders can be tricky and problematic. What is very clear from this case is that spousal maintenance cannot be granted post-divorce. In an application for rescission of a divorce order which is silent on spousal maintenance an applicant forfeits her right to claim spousal maintenance if the final order of divorce is not rescinded. As a result, I submit that in an application for the rescission of a divorce order an applicant who qualifies for spousal maintenance has a choice to, either:

forfeit the right to claim spousal maintenance and claim only the rescission of the ancillary orders and not the rescission of the decree of divorce; or
claim for the rescission of the divorce order if one wants to claim spousal maintenance.
The question is, will the court grant the order sought in the above second point if the applicant insists on it and in circumstances where the respondent remarried and the new wife is joined to the proceedings? In Togo, the problem that the court faced was simplified when the applicant waived her right to claim spousal maintenance. I submit that if the applicant wanted to claim spousal maintenance against the respondent, she could have insisted on her prayer for the rescission of the whole divorce order so that when the divorce order was granted for the second time she could claim spousal maintenance. I further submit that the court would have been bound to rescind the decree of divorce if the applicant showed good cause.

The following two cases are relevant to the present discussion. In O v O (WCC) (unreported case no 6912/13, 21-11-2019) (Loots AJ), the court had to consider an application for the separation of issues in terms of r 33(4) of the Uniform Rules of Court in which the applicant sought an order to have the question of the decree of divorce separated from the remaining issues in the divorce action. The court had to consider among others, whether or not the maintenance order granted in terms of r 43 lapses if the decree of divorce was granted pursuant to the successful application for separation. After reviewing a number of cases, the court found that pending the finalisation of the divorce action, an extant order in terms of r 43 survives a decree of divorce to the extent that the issues regulated thereby remain unresolved. However, in NK v KM 2019 (3) SA 571 (GJ), the court was faced with a similar application and it rejected the approach in O v O. The court found that once a decree of divorce is granted the provisions of r 43 of the Uniform Rules of Court will find no application. It is my view that the approach in O v O is more expedient and preferable. Where the issues between the parties remain unresolved, an existing order of maintenance should remain intact.

Conclusion
From the discussion above, I submit that where a final divorce order is granted in default and an application for the rescission of the divorce order is sought, it cannot be said that the matter has been finalised. Though the parties may no longer be married it cannot be said that the matrimonial action between them has been finalised. The status of the parties to the action remains that of spouses (see Carstens v Carstens (ECP) (unreported case no 2267/2012, 20-12-2012) (Roberson J)). I submit that the right to claim spousal maintenance should invariably survive the granting of a divorce order in circumstances where the issues relating to the divorce remain unresolved particularly where the order was granted in default. In those instances, the right to claim spousal maintenance should survive a decree of divorce. This will protect both parties in that the court would still be entitled to consider a claim for spousal maintenance post-divorce without unscrambling the divorce order. I further submit that in Togo, the court should have also considered the possibility of developing the common law in terms of the Constitution to recognise a claim for spousal maintenance post-divorce.

James Dumisani Lekhuleni BProc LLB (UL) LLM LLM (UP) LLD (UWC) is a regional magistrate in Cape Town.

This article was first published in De Rebus in 2021 (April) DR 16.

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