S v S (09/37186) [2009] ZAGPJHC 119 (18 November 2009)

S v S (09/37186) [2009] ZAGPJHC 119 (18 November 2009)

The respondent's unilateral decision to pay maintenance directly to M upon his eighteenth birthday is contrary to the express terms of the settlement and variation agreements, which provide that maintenance is payable to the applicant until M turns 21, becomes self-supporting, or marries. The agreements remain enforceable between the parties except as varied, and the applicant retains the right to recover maintenance from the respondent until the specified events occur. The High Court has jurisdiction to vary the maintenance order under section 8 of the Divorce Act, as both parties are domiciled within its jurisdiction. The relief sought in paragraph 3 of the notice of motion is...

Citation
[2009] ZAGPJHC 119
Parties
Applicant: MRS. S (formerly S); Respondent: MR S
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 November 2009
Case Number
09/37186
Procedural Posture
Civil Application / Application for Enforcement and Variation of Maintenance Order
Outcome
Application granted in part; respondent ordered to pay maintenance for M to the applicant and to pay costs.
Judges
P.A. Meyer
Legal Topics
Maintenance Obligations, Variation of Divorce Order, Children's Act Majority, Enforcement of Settlement Agreement
Family and Children Civil Procedure Maintenance Obligations Variation of Divorce Order Children's Act Majority Enforcement of Settlement Agreement

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Parties

MRS. S (formerly S)

Applicant

MR S

Respondent

Procedural Posture

Civil Application / Application for Enforcement and Variation of Maintenance Order

Legal Issues

  1. 1 Whether the respondent is entitled to pay maintenance directly to the child upon reaching majority instead of to the applicant.
  2. 2 Whether the settlement and variation agreements remain enforceable beyond the terms incorporated in the divorce order.
  3. 3 Whether the High Court has jurisdiction to vary the maintenance order granted by another division.

Ratio Decidendi

The respondent's unilateral decision to pay maintenance directly to M upon his eighteenth birthday is contrary to the express terms of the settlement and variation agreements, which provide that maintenance is payable to the applicant until M turns 21, becomes self-supporting, or marries. The agreements remain enforceable between the parties except as varied, and the applicant retains the right to recover maintenance from the respondent until the specified events occur. The High Court has jurisdiction to vary the maintenance order under section 8 of the Divorce Act, as both parties are domiciled within its jurisdiction. The relief sought in paragraph 3 of the notice of motion is...

Court Disposition

Application granted in part; respondent ordered to pay maintenance for M to the applicant and to pay costs.

Orders

  • The respondent is ordered to pay the maintenance for M, as provided for in clause 3.2 of the variation agreement read with clause 6.5 of the settlement agreement, directly to the applicant.
  • The respondent is ordered to pay the applicant’s costs of the application.