DAINE S v DAINES AND ANOTHER 1980 ZLR 141 (G)

Author: Trodat Zimbabwe

DAINE S v DAINES AND ANOTHER 1980 ZLR 141 (G)

1980 ZLR p141

Citation                 1980 ZLR 141 (G)

Case No                Details not supplied

Court                    General Division, Salisbury

Judge                    Squires, J

Flynote

Husband and wife — maintenance after divorce — assessment — distinction between such maintenance and maintenance pendente lite or maintenance after judicial separation.

Headnote

Unlike maintenance granted to an applicant who is still married to the respondent and who is entitled to be maintained as his wife, the quantum of maintenance granted to a wife on divorce need not necessarily be such as to enable her to live at the same standard as she _H enjoyed during the marriage? indeed if an ex­wife can support herself adequately she may be awarded no maintenance at all.

1980 ZLR p142

Squires J

Section 9 (1) of the Matrimonial Causes Act [Chapter 39] requires that maintenance after divorce be assessed according to a value judgment weighing the respective means of the parties against any needs or meets shown to exist on one side or the other. _A

Cases cited

Stone v Stone, 1966 (4) SA 98 (C)?

Louis v Louis, 1973 (2) SA 597 (T)? Dawe v Dawe, 1979 RLR 395 (GD)?

van der Walt v van der Walt, 1961 (4) SA 854 (O). _B

Case information

R Hill, for the plaintiff.

I A Donovan, for the defendant.

Judgment

Squires J: The plaintiff in this action instituted proceedings _C against the first defendant for a decree of divorce on the grounds of his adultery with the second defendant, alternatively on the grounds of cruelty, for custody of the remaining minor child of the marriage ­ the other now being a major and for maintenance for herself in the sum of $300 per month. She also claimed damages against the second respondent _D in the sum of $4 000 for her adultery with the first defendant.

There is no dispute that the first defendant committed adultery with the second defendant and the first defendant accepts that the plaintiff is entitled to a decree of divorce on this basis. No issue, furthermore, arises about custody of the daughter of the parties and a claim for maintenance _E for her was not persisted with. Similarly a sum of $250 was paid into Court in respect of the claim against the second defendant and this issue was resolved by the plaintiff deciding to accept that amount. The only matter in dispute was the amount of maintenance which the plaintiff could claim as her support after divorce. _F

[The learned Judge then dealt with the evidence concerning the financial situation of the parties and continued:]

Against that background what is the proper approach and the eventual result? I think that it must be borne in mind that this is a claim _G for alimony after divorce in terms of the Matrimonial Causes Act and the basis for an award is not the same as it is in an application for maintenance, pendente lite, or in separation proceedings. In those two latter cases the applicant is still the wife of the defendant and is entitled to maintenance in a sum, if it can be afforded, to enable her to _H live at a standard as near as possible to that enjoyed while the parties lived together. In a case where the matrimonial status terminates the duty to support ceases. The granting of alimony in a claim such as the present one and the right to such alimony is not determined on the same

1980 ZLR p143

Squires J criteria as apply to the case of the applicant who is still married to the defendant and who is, therefore, entitled to be maintained as his wife. _A Even though she may qualify for a divorce and an award of maintenance after divorce, it by no means follows that the quantum of this should be such as to enable her to live to the same standard as she enjoyed during the subsistence of the marriage. Indeed, it has been held before that if an ex­wife can support herself adequately she will be awarded no _B maintenance since she cannot expect to enjoy after divorce the same standard of living as she had before. This distinction has been carefully considered in a number of decisions in South Africa, notably a full bench Court in Stone v Stone, 1966 (4) SA 98 (C), and in those referred to in Louis v Louis, 1973 (2) SA 597 (T.). _C

I mention this particularly since the plaintiff’s claim, as already stated, seemed to be assessed on a basis that would enable her to live at a standard comparable to that enjoyed before the parties separated and to that extent it conflicts with the authorities I have referred to on this subject and it appears to me to be misconceived. The decision of _D Dawe v Dawe, 1979 RLR 395 (G.D.), referred to by Mr Hill, does not seem to me to assist because it was concerned with the justifiability of varying an existing Court order and, moreover, one which the ex­husband had voluntarily undertaken to pay and then wished to decrease because of his changed circumstances. Van der Walt’s case ^* is, similarly, one that _E stemmed from different circumstances.

Now the requirement provided in section 9 (1) of the Act is that the Court must be satisfied in all the circumstances of the case that it is just and equitable that the defendant be compelled to contribute to her _F support. Within the limits of the present situation, namely that the duty to support will cease on divorce, the language of the Act still seems to import a value judgment based on the respective means of the parties as opposed to any needs or merits that may be shown to exist on one side or the other. I have given this the most careful and conscientious _G consideration I can in the light of the circumstances of the parties, particularly the plaintiff’s age and the fact that competition for employment far her at a higher remuneration may be difficult now, and in the light of the other circumstances I have referred to above, and I have come to the conclusion that the plaintiff has shown that she does need some _H maintenance to support herself adequately, but she has claimed more than I think is equitable for this purpose. On the other hand, having regard to the means of the first defendant and the circumstances of the case as they bear on such responsibility as he may equitably have

1980 ZLR p144

Squires J towards the plaintiff, think the $50 per month he has offered so far is less than she requires or deserves.

Bearing in mind that the plaintiff is not entitled to demand to live at _A the expense of the first defendant at the same standard as she enjoyed prior to this divorce and that there are items in her claim which were based on that erroneous premise, even the lesser sum of $204 shown as the shortfall of income over expenditure revealed in Exhibit 3 can, my view, be reduced. _B

Without putting a precise figure on the amount, I think at least the sums claimed for rent, entertainment, holidays and savings are more than an equitable payment requires. Balancing that against what I think the defendant can afford out of the list of his earnings and expenditure I _C think it will be just and equitable, as far as the plaintiff’s needs are concerned, if the first defendant pays to the plaintiff the sum of $140 per month as maintenance after the divorce. [The remainder of the judgment is not material to this report. ­ Editor.] _D Atherstone & Cook, attorneys for plaintiff..

Cognac, Welsh and Guest, attorneys for defendants. _E

     *   Van der walt v Van der Walt, 1961 (4) SA 854 (O.). ­ Editor.