N v N (1373/2016) [2018] ZAECPEHC 84 (22 November 2018)

Parties

Procedural Posture

Variation Application / Application for Variation of Rule 43 Maintenance Order

Legal Issues

1. 1 Whether there has been a material change in the circumstances of either party justifying variation of the Rule 43 maintenance order.
2. 2 Whether the respondent's improved financial position due to cohabitation with a new partner warrants reduction of maintenance.
3. 3 Whether the applicant is entitled to repossess the BMW X1 motor vehicle from the respondent.

Ratio Decidendi

The court found that there had been a material change in the respondent's circumstances, as she was now living with a wealthy partner who provided her with a higher standard of living than during the marriage. Although cohabitation alone does not bar maintenance, the substantial financial support received from her partner was a relevant factor. The applicant's financial difficulties were acknowledged, though somewhat overstated. The respondent no longer required the BMW X1, and the applicant and their son had a greater need for it. Accordingly, the maintenance order was varied to reduce the monthly amount and allow the applicant to repossess the vehicle.

Court Disposition

The Rule 43 maintenance order was varied: maintenance reduced, and the applicant permitted to repossess the BMW X1 motor vehicle.

Orders

• The order dated 1 June 2017 is varied by deletion of paragraphs 1 and 2 thereof.
• The applicant is ordered to pay maintenance to the respondent in the amount of R15 000.00 per month with effect from 30 November 2018 and thereafter on or before the first day of each subsequent month.