P.P v M.P (11672/2017) [2018] ZAWCHC 140 (6 November 2018)

P.P v M.P (11672/2017) [2018] ZAWCHC 140 (6 November 2018)

The court found that the fixed annual escalation of 12% in the maintenance order, agreed in 1991, has resulted in payments that far exceed the respondent's reasonable needs, as the increases have consistently outpaced inflation. The respondent failed to provide any evidence or averment that the current maintenance amount is reasonably required for her needs, nor did she address the necessity of continuing the fixed escalation. The consent paper expressly allowed for variation of maintenance on good cause shown, and the principle of pacta sunt servanda does not preclude such variation where the agreement provides for it. The applicant demonstrated sufficient reason for the variation, and...

Citation
[2018] ZAWCHC 140
Parties
Applicant: P P; Respondent: M P
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 November 2018
Case Number
11672/2017
Procedural Posture
Variation Application / Judgment After Opposed Application
Outcome
Application granted in part; the annual escalation clause in the maintenance order is varied to CPI plus 2.5%, subject to a maximum of 12% per annum.
Judges
J Cloete
Legal Topics
Variation of Maintenance Order, Divorce Act Section 8, Consent Paper Interpretation, Annual Escalation Clause, Consumer Price Index, Pacta Sunt Servanda
Family and Children Variation of Maintenance Order Divorce Act Section 8 Consent Paper Interpretation Annual Escalation Clause Consumer Price Index Pacta Sunt Servanda

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Parties

P P

Applicant

M P

Respondent

Procedural Posture

Variation Application / Judgment After Opposed Application

Legal Issues

  1. 1 Whether the annual 12% escalation clause in the maintenance order should be varied to align with the Consumer Price Index plus 2.5%.
  2. 2 Whether the applicant has shown sufficient reason for the variation sought under section 8 of the Divorce Act.
  3. 3 Whether the principle of pacta sunt servanda precludes variation of the escalation clause in the parties' consent paper.

Ratio Decidendi

The court found that the fixed annual escalation of 12% in the maintenance order, agreed in 1991, has resulted in payments that far exceed the respondent's reasonable needs, as the increases have consistently outpaced inflation. The respondent failed to provide any evidence or averment that the current maintenance amount is reasonably required for her needs, nor did she address the necessity of continuing the fixed escalation. The consent paper expressly allowed for variation of maintenance on good cause shown, and the principle of pacta sunt servanda does not preclude such variation where the agreement provides for it. The applicant demonstrated sufficient reason for the variation, and...

Court Disposition

Application granted in part; the annual escalation clause in the maintenance order is varied to CPI plus 2.5%, subject to a maximum of 12% per annum.

Orders

  • The Consent Paper incorporated in the parties’ Final Order of Divorce is varied as set forth in the judgment.
  • Clause 3 is amended by inserting 'subject to clause 4 below' at the beginning of the first unnumbered paragraph.