S.L.M v B.M (2017/30005) [2023] ZAGPJHC 546 (23 May 2023)

S.L.M v B.M (2017/30005) [2023] ZAGPJHC 546 (23 May 2023)

The court found that the settlement agreement expressly provided for maintenance until the defendant's death, with no reference to remarriage or cohabitation in the relevant clause. There was no evidence or conduct from which a tacit or implied term could be inferred, nor was such a term implied by law. The plaintiff failed to plead or prove the necessary circumstances for importing a tacit term, and the agreement constituted the whole agreement between the parties. The court held that importing a tacit term would conflict with the express wording of the agreement and that section 7(1) of the Divorce Act allows parties to contract freely regarding maintenance. There was no sufficient...

Citation
[2023] ZAGPJHC 546
Parties
Plaintiff: S L M; Defendant: B M
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 May 2023
Case Number
2017/30005
Procedural Posture
Family Divorce Action / Trial Judgment After Referral From Application
Outcome
Action dismissed; costs awarded against the plaintiff.
Judges
Moorcroft
Legal Topics
Divorce Settlement Agreement, Spousal Maintenance, Tacit Terms, Implied Terms, Variation of Order, Freedom of Contract
Family and Children Divorce Settlement Agreement Spousal Maintenance Tacit Terms Implied Terms Variation of Order Freedom of Contract

Case Brief

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Parties

S L M

Plaintiff

B M

Defendant

Procedural Posture

Family Divorce Action / Trial Judgment After Referral From Application

Legal Issues

  1. 1 Whether the settlement agreement contains a tacit or implied term that maintenance is terminable upon remarriage of the defendant.
  2. 2 Whether cohabitation amounts to remarriage or a permanent life partnership for the purposes of terminating maintenance.
  3. 3 Whether there is sufficient reason to rescind or vary the maintenance clause under section 8 of the Divorce Act.

Ratio Decidendi

The court found that the settlement agreement expressly provided for maintenance until the defendant's death, with no reference to remarriage or cohabitation in the relevant clause. There was no evidence or conduct from which a tacit or implied term could be inferred, nor was such a term implied by law. The plaintiff failed to plead or prove the necessary circumstances for importing a tacit term, and the agreement constituted the whole agreement between the parties. The court held that importing a tacit term would conflict with the express wording of the agreement and that section 7(1) of the Divorce Act allows parties to contract freely regarding maintenance. There was no sufficient...

Court Disposition

Action dismissed; costs awarded against the plaintiff.

Orders

  • The action is dismissed.
  • The plaintiff is ordered to pay the defendant's costs, including costs reserved on 25 May 2022.