The welfare of children in a divorce or separation is the most important aspect of any divorce. Although most couples believe children’s welfare is one of the most important factors to consider in a divorce, a great percentage of parents that divorce or separate see conflict as an inevitable part of the process and are determined to fight battles in court.

From time to time one comes across an intransigent parent who is incapable of objectivity when considering what is best for the child. It may well be that you do not like your partner, but the child’s view of the parent is different. He or she will have love and trust for that person, capable of transcending even the most dreadful scenes that may have been witnessed.

Unfortunately it occurs often that one parent use the machinery of the law in a wrongful manner in an attempt to “legally abduct” or alienate a child by making false allegations against or about the other parent.  Often one would find that a parent will for example falsely accuse the other parent of sexually molesting the child or accusing the other parent of emotional abuse towards the child.

​In a recent matter a mother who was the custodian parent brought an application for a protection order against the father on behalf of their 8 year old daughter because according to her the father abused the child emotionally, when the father in fact only disciplined the child. The father was trying to make telephonic contact with his daughter for days but the mother frustrated the contact by not answering the phone and replying to his sms messages. When the father eventually did manage to speak to his daughter he disciplined her over the phone for not contacting him. The child burst out in tears and the mother used the incident as the basis for a protection order against the father for alleged emotional abuse of the child. The court granted an interim protection order in the father’s absence and the father was only able to see his child under supervision, previously the father had contact with his child every alternate weekend. A social worker was then appointed as well as a psychologist to investigate. Needless to say the child was dragged through court appearances at the Children’s court.

A child prevented from seeing a parent, they still love will eventually turn the resentment against the one trying to enforce the unenforceable. Parents often fail to comprehend the impact on the children of the conflict in their relationship.

The adults in the child’s life, can make the divorce and separation experience for a child much less harmful by being aware of several ways to help the child:
​
The child must feel and experience unconditional love from each parent.
The child must feel free of fault for the divorce and separation.
The child must feel that each parent respects the rights of the other parent.
The child must feel that he/she will be okay after the divorce and separation.
The child must feel that each parent will be okay after the divorce and separation.

Children sense and feel their parent’s emotions and especially the parent’s emotions toward one another. During a divorce and separation, adults experience some very strong and difficult emotions. It is difficult for a human being to understand how he/she could have so much love and passion for another person at one point in time, and then later have so much disdain and even hatred for that same person. It is okay for parents to talk to the child about the fact that they don’t love each other any more  but the child must hear, sense, and feel that while the parents don’t love each other any more and don’t want to live in the same house, they do respect each other’s rights as a parent to the child. For example, both parents should encourage the child to spend time with the other parent, to respect to the other parent, to obey the other parent, and to love the other parent. This can be very difficult when a parent thinks the other is making poor decisions.

The goal for divorced or separated parents should always be to maintain the best co-parenting relationships possible by moving past previous relationship issues and focusing on children’s well-beings. Conflict within a relationship or marriage where there are children involved or after a divorce or separation is the most harmful thing parents can do for their children’s development. If children go through their parents’ divorce, they have lost some access to both their parents to an extent. If the parental combat continues, the children have not only lost that access, they are still involved in that conflict and it harms children. Focusing on the children instead of the relationship problems can help divorced couples to be better parents, not messed up parents.

Bertus Preller
Family Law Attorney
Bertus Preller & Associates Inc.
021 422 2461

Source: http://voices.news24.com/bertus-preller/2013/03/if-you-do-mess-up-your-marriage-or-relationship-please-dont-mess-up-your-children-in-the-process/

Is there a duty on children to support their parents?
 
Children have a responsibility to support their parents and grandparents, but always subject to the rule that support must be claimed from closer relatives first.

The basis of a child’s duty to support parents is the sense of dutifulness or filial piety.  In certain circumstances, even a minor child may have to support parents. As always, the criteria of need on the part of the person to be maintained and ability to support on the part of the person from whom support is claimed, must be present.

A parent who claims support from a child must prove his need and the child’s ability to support but a more stringent criterion of need is applied to parents than to children – indigence on the part of the parent is stated to be a condition.

In the case of Smith v Mutual and Federal Co Ltd 1998 4 SA 626 (C) the court emphasized that, to prove need, a stringent criterion of need must be established. For the claimants to succeed, they are required to prove not only that the deceased had provided support, but also their own indigence and inability to support themselves. Indigence is defined as extreme need or lack of the basic necessities of life.

In Oosthuizen v Stanley 1938 AD 322 328 the court referred to “the quality and condition of the persons to be supported”. In the same case, it was pointed out that where a parent must be supported it is not only his own needs but also those of his dependents that must be considered. In Van Vuuren v Sam 1972 2 SA 633 (A) 642 Rabie JA referred to the same criterion, but stressed that the support of parents must be confined to the basic needs, namely food, clothing, shelter, medicine and care in times of illness.
 
Is there a duty on grandparents to support their grandchildren?
 
The maintenance obligation towards a child is primarily the burden of the parents of the child. However, if the parents are not capable of meeting this obligation, it is inter alia transferred to the grandparents.

In Barnes v Union and South West Africa Insurance Co Ltd the court ruled:

“It seems clear that there is an order of priority under the common law. ‘If father and mother are lacking or are needy the burden of maintaining grandchildren and other further descendants has been laid by the civil law on the parental and maternal grandfather and the rest of the ascendants.”

Per this text there is a priority upon whom the burden to maintain children falls if the parents cannot maintain them. The burden first falls upon the grandparents, and if they cannot pay, the burden is transferred to the great-grandparents, before brothers or sisters are called on to pay maintenance. It would seem as if the direct line must first be exhausted before the collateral line is engaged for support.

Compiled by: Bertus Preller - Family Law Attorney
Bertus Preller & Associates Inc.
Ground Level, The Chambers, 50 Keerom Street, Cape Town, 8000
Telephone: +27 21 422-2461 or +27 21 422-2573 or +27 21 422-2597
Facsimile: +27 086 572 8373
E-mail: info(@)preller.co.za
Facebook: http://www.facebook.com/divorceattorneys
Twitter: @bertuspreller

It frequently happens that parties include a clause in a Divorce Settlement Agreement that neither party shall have the right, after divorce, to approach the maintenance court for a variation of the spousal maintenance. Effectively this means that the maintenance may not be increased or decreased. 

According to section 8 of the Divorce Act, 70 of 1979 a maintenance order, made in terms of this Act, may at any time be rescinded or varied or, in the case of a maintenance order or an order with regard to access to a child, be suspended by a court if the court finds that there is sufficient reason. The Maintenance Act 99 of 1998 (“the Act”) provides at section 6 as follows:

“6 Complaints relating to maintenance
 
(1)  Whenever a complaint to the effect-
…
(b) that good cause exists for the substitution or discharge of a maintenance order; or
…
has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner and as provided in this Act”.

The Act further provides at section 16(1) as follows:
 
16        Maintenance and ancillary orders
 
(a)  in the case where no maintenance order is in force--
(i)            make a maintenance order against any person proved to be legally liable to maintain any other person for the payment during such period and at such times and to such person, officer, organisation or institution, or into such account at such financial institution, and in such manner, which manner may include that an arrangement be made with any financial institution for payment by way of any stop-order or similar facility at that financial institution, as may be specified in the order, of sums of money so specified, towards the maintenance of such other person, which order may include such order as the court may think fit relating to the payment of medical expenses in respect of such other person, including an order requiring such other person, if the said other person qualifies therefor, to be registered as a dependent of such person at a medical scheme of which such person is a member;
 
…or
 
(b)  in the case where a maintenance order is in force--
 
          (i)            make a maintenance order contemplated in paragraph (a) (i) in substitution of such maintenance order; or
 
            (ii)          discharge such maintenance order; or
 
(c)  make no order.

In terms of section 6(1) of the Maintenance Act, a  maintenance  order  (whether  in terms  of  a  consent  agreement  or  not)  may  be  varied  or  discharged  if  a complainant can demonstrate “good cause” therefore.

In Odgers v De Gersigny [1] the Supreme Court of Appeal held that where parties have agreed in a consent agreement that the ex-wife shall be maintained for x amount of years and the agreement makes no mention of remarriage or death, the ex-husband will have to continue paying the maintenance if the ex-wife married before the time ran out, as a consent agreement is contractual in nature and parties will be held to their bargain.  However, it should be noted that this case was concerned with the interpretation of a consent agreement and not with whether there existed “good cause” to set the consent agreement aside.

In Georghiades v Janse van Rensburg [2] the court held:
 
“Generally speaking, our courts except that circumstances must have changed substantially and that it would be unfair to allow the order to stand in its original form before rescission, variation or suspension of an existing maintenance order will be granted. In Havenga v Havenga, Harms J, pointed out that, although, in general, they will not be sufficient reason for the variation or rescission of a maintenance order in the absence of a real change in circumstances, changed circumstances are not a statutory prerequisite and they may sometimes be sufficient reason although circumstances have not changed”.

The validity of a waiver of the right to apply for the rescission, variation or suspension of a maintenance order was for long controversial, the essence of the debate being whether such a waiver was contrary to public policy. Those who have argued that it was, considered the waiver to be undesirable in that it deprived the court of its jurisdiction to rescind, suspend or vary the order. Those who took the opposite view stressed freedom of contract.

The cases of Knight [3] Gawith [4] Cillier [5] and Claasens [6] concerned agreements between divorcing parties in which one party only waived the right to variation.In Gawith and Claasens such waivers were found to be valid; in Cilliers the waiver was found to conflict with legislation then in force; in Knight Corbett J expressed grave doubts about the correctness of decisions in which such waivers had been held to be valid but considered himself bound by the previous decisions to that effect in his division. He nevertheless found the relevant clause to be undesirable on other grounds.

As a general rule a maintenance order made in terms of the Divorce Act may at any time be rescinded, varied or suspended by a court if the court finds that there is sufficient reason to do so, see Reid v Reid.[7] The application for variation may also be to extend or shorten the period during which maintenance is payable.

In Georghiades Griesel J said as follows[8]: 

“[13] Section 8 of the Act creates an exception to the general rule that an order of court, once pronounced, is final and immutable.  It permits the Court, for 'sufficient reason', to rescind, vary or suspend a maintenance order granted earlier.  This provision was introduced so as to authorise the Court to amend maintenance orders on good cause shown, so as to enable spouses to come to Court 'to redress injustices occasioned by a maintenance order which no longer fits the changed circumstances'.”
 
The learned Judge went on to state that each case must be decided on its merits and, referring to case law, drew a distinction between cases relating to a fixed amount payable till death or remarriage and cases where maintenance was payable for a limited period. In this regard the following was stated[9]:

“[26] Counsel also relied on the cases of Girdwood v Girdwood [10], Davis v Davis [11] and Hoal v Hoal [12].   Comparisons were made, inter alia, between relevant clauses of the consent papers in those matters and those of the consent paper in the present matter. In this regard it bears repetition that limited assistance can be obtained from considering the terms of agreements which featured in other cases and that each case must be decided on its own facts".
 
In Bond v Bond [13] the court was asked to vary a consent order incorporated in the divorce decree regulating the parties' divorce, the court in the present inquiry, focused on the interpretation of one of the clauses (relating to maintenance) in the order. The respondent contended that the applicant was precluded from obtaining a variation of the consent paper. The court held that a basic principle of interpretation is that a court will always first look to the wording of the terms that had been agreed upon by the parties, and will as far as possible give the language used by the parties its ordinary grammatical meaning. The only circumstances where this situation will be deviated from, is when it leads to inconsistency, repugnancy or an outcome contrary to public policy. Once the literal meaning has been ascertained, then regard must be had to the context in which a word or phrase is used. Regard must also be had to the nature and purpose of the contract. In doing so, the common intention of the parties at the time of concluding the consent paper must be ascertained according to the above mentioned cannons of construction. In this case, the respondent undertook to maintain the applicant "until her death, remarriage or cohabitation in a relationship akin to that of marriage". That was what would constitute the "maintenance period". There was no automatic termination of the maintenance, unless one of those events occurred. In terms of section 8(1) of the Divorce Act 70 of 1979, a maintenance order may be rescinded, varied or suspended at any time if the court finds that there is sufficient reason therefore. The only limitation on the court's power to rescind or vary a maintenance order, is that "sufficient reason" must be shown. The court concluded that the applicant was entitled to apply for an increase as she had.
 
In Girdwood, supra, the court held that in the case of waiver of a spouse’s right to claim variation of maintenance after divorce, there would have to be a clear indication in the settlement agreement that the spouse was fully aware of the statutory right to claim variation, and that he or she expressly or by his or her conduct waived that right.
 
 In the case of Barkhuizen v Napier [14] the Constitutional Court found that the proper approach to the constitutional challenges to contractual terms was to determine whether the term challenged was contrary to public policy as evidenced by the constitutional values, in particular, those found in the Bill of Rights. This approach left space for the doctrine of pacta sunt servanda to operate, but at the same time allowed courts to decline to enforce contractual terms that were in conflict with the constitutional values even though the parties might have consented to them.

In the case of Schutte [15] the Supreme Court of Appeal found that a clause in a settlement agreement that prohibited the parties to approach a court to vary maintenance was not against public policy.

It goes without saying that a non-variation clause may have bizarre  consequences for the parties. For example, where a husband becomes unemployed or is sequestrated after a divorce his dilemma will be that he will not be able to approach the maintenance court for a reduction of his maintenance obligations. This in itself can be viewed as against public policy.

It is clear that the court will always be able vary a maintenance order when there is sufficient reason to do so. Although a settlement agreement is contractual in nature it may be argued that since it is impossible to foresee the future circumstances of the parties considerations of fairness and justice should be applied. With that in mind it is submitted that in special circumstances a courts' jurisdiction should not be ousted to vary a maintenance order that simply does not fit in with reality. Settlement agreements are not agreements that are cast in stone. For example, a settlement agreement may deal with the care and contact arrangements of the children and stipulates how contact between the parents and the children should be exercised. As children grow older the essence of the contact also changes as the circumstances evolve, the same can be said of maintenance.


[1] 2007 (2) SA 305 (SCA) at p309
[2] 2007 (3) SA 18 (C) at para [15]
[3] 1967 1 SA 40 (C)
[4] 1966 3 SA 596 (C)
[5] 1977 1 SA 561 (O)
[6] 1988 4 SA 163 (W)
[7] Reid v Reid 1991 (1) SA 443 (E)
[8] At para 13 at page 22
[9] At para 26 at pages 26 G to 27 C
[10] Girdwood v Girdwood 1995 (4) SA 698 (C) at 708B
[11] Davis v Davis 1993 (1) SA 621 (C)
[12]  2002 (3) SA 209 (N) the court also held that if the parties do not specifically exclude their right to invoke section 8(1) of the Divorce Act 70 of 1979, either of them can seek variation of the arrangements regarding maintenance, care or contact they agreed upon in their settlement agreement
[13] [2009] JOL 23915 (C)
[14] 2007 (7) BCLR 691 (CC)
[15] 1986 (2) All SA 70 (SCA)

​Compiled by: Bertus Preller - Family Law Attorney
Bertus Preller & Associates Inc.
Ground Level, The Chambers, 50 Keerom Street, Cape Town, 8000
Telephone: +27 21 422-2461 or +27 21 422-2573 or +27 21 422-2597
Facsimile: +27 086 572 8373
E-mail: info(@)preller.co.za
Facebook: http://www.facebook.com/divorceattorneys
Twitter: @bertuspreller