Token Maintenance : Issues for Consideration

MG v RG 2012 (2) SA 661 (KZP)

The matter of MG v RG 2012 (2) SA 661 (KZP) dealt with an appeal emanating out of an Order in the North Eastern Divorce Court (Durban) in terms of which the North Eastern Divorce Court refused inter alia to grant maintenance including token maintenance in the amount of R1.00 per annum to an applicant.

The facts of the matter were that the applicant a machinist at the time of the divorce alleged that during the marriage of 28 years duration, the respondent an alleged alcoholic and compulsive gambler had squandered a pension fund payment of approximate R1.2 million but that he was at the time of the divorce, unemployed. The applicant had claimed maintenance from the respondent in her divorce papers which had not been contested by the respondent. At the time of the divorce hearing, the applicant had in response to the Presiding Officer’s questioning indicated that she was uncertain as to the respondent’s financial state and whether he was in a position to pay the maintenance claimed . In light of the Court’s questioning hereon and in order to keep the applicant’s claim for maintenance alive, applicant’s attorney there and then amended the applicant’s prayer to a claim for token maintenance in the amount of R1.00 per annum. The attorney asked that Court make the Order and then refer the matter to the Maintenance Court for its determination hereof. This was rejected by the Court.

On appeal the High Court confirmed the legal principles that (i) a divorce dissolves the bond of marriage and that unless maintenance is granted at the time of divorce, the duty of care ceases to operate between the spouses ; (ii) the need for maintenance and its duration must be established but that an Order for token maintenance in the form of R1.00 per annum is sometimes required in order to preserve the right to claim future maintenance despite an absence of current need.

The Court held that claims for token maintenance were recognised by Law and capable of being granted as a matter of judicial discretion, regard being had to the list of factors enumerated in Section 7(2) of the Divorce Act. The Court further confirmed the Constitutional principle that there is a duty placed on judicial officers to ensure that the rights contained in the Bill of Rights are protected, particularly in cases where, because of a particular vulnerability, those who approach the Court for relief might not fully understand their rights or the legal process and that there was is in particular, by virtue of the general circumstances of the persons who access the court, a duty on Presiding Officers in the Divorce Court to remain vigilant and ensure that sufficient and proper evidence is elicited and presented before making a decision.

The Court held that the refusal by the Presiding Officer in the matter at hand to grant an Order for token maintenance in the applicant’s favour put an end to any claim that the she could have against her spouse in the future if her circumstances changed. The Court accordingly allowed for the claim for token maintenance to succeed and stated that if the applicant’s circumstances changed in the future, she would have the right to pursue a claim for maintenance against the respondent through the Maintenance Court.

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