Schutte v Schutte (137/1984) [1985] ZASCA 141 (29 November 1985)

Schutte v Schutte (137/1984) [1985] ZASCA 141 (29 November 1985)

The court held that the waiver clause in the settlement agreement, which provided that maintenance would not be subject to increase or decrease except for inflation adjustments, was not void. The statutory scheme of the Divorce Act 70 of 1979 does not prohibit parties from waiving the right to seek future variation of maintenance orders, nor does it reflect a legislative policy that divorced spouses must always have recourse to increased maintenance. The court found that only maintenance orders made at the time of divorce are subject to future variation under section 8(1), and if no order is made, the court cannot later grant maintenance. The parties could have achieved the same result by...

Citation
[1985] ZASCA 141
Parties
Appellant: Frederick Grant Schutte; Respondent: Helena Catharina Schutte
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 1985
Case Number
137/1984
Procedural Posture
Civil Appeal / Appeal From Divorce Order
Outcome
Appeal upheld; trial court's order replaced.
Judges
Jansen, Joubert, Van Heerden, Hefer, Cillie, War
Legal Topics
Maintenance Orders, Divorce Settlement, Contractual Waiver, Public Policy, Statutory Interpretation
Family and Children Maintenance Orders Divorce Settlement Contractual Waiver Public Policy Statutory Interpretation

Case Brief

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Parties

Frederick Grant Schutte

Appellant

Helena Catharina Schutte

Respondent

Procedural Posture

Civil Appeal / Appeal From Divorce Order

Legal Issues

  1. 1 Whether parties to a divorce action can validly waive the right to approach the court in future for variation of a maintenance order under section 8(1) of the Divorce Act 70 of 1979.
  2. 2 Whether the waiver clause in the settlement agreement is void as contrary to public policy or statute.
  3. 3 Whether the trial court erred in excluding clause 2.1 from the order.

Ratio Decidendi

The court held that the waiver clause in the settlement agreement, which provided that maintenance would not be subject to increase or decrease except for inflation adjustments, was not void. The statutory scheme of the Divorce Act 70 of 1979 does not prohibit parties from waiving the right to seek future variation of maintenance orders, nor does it reflect a legislative policy that divorced spouses must always have recourse to increased maintenance. The court found that only maintenance orders made at the time of divorce are subject to future variation under section 8(1), and if no order is made, the court cannot later grant maintenance. The parties could have achieved the same result by...

Court Disposition

Appeal upheld; trial court's order replaced.

Orders

  • The marriage between the parties is dissolved.
  • The settlement agreement marked 'B' is made an order of court.