THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 188/2011

In the matter between:

ELWYN DALE HARLECH-JONES

Appellant

and

SHIRLEY MARGARET HARLECH-JONES

Respondent

Neutral citation:
Harlech-Jones v Harlech-Jones (188/2011) [2012] ZASCA 19
(22 March 2012)

Coram:
Mthiyane DP, Cloete, Mhlantla and Leach JJA and Boruchowitz AJA

Heard:
6 March 2012

Delivered:
22 March 2012

Summary:
Divorce ─ maintenance ─ wife cohabiting with and being fully
maintained by another man ─ this state of affairs lasting for years before the divorce
and intended to be permanent ─ wife failing to show she was entitled to
maintenance from her husband on divorce.

___________________________________________________________________

O R D E R
___________________________________________________________________

On appeal from:
Eastern Cape High Court, Port Elizabeth (Schoeman J sitting as
court of first instance):
The appeal succeeds and the order of the high court is amended to read as follows:
‘The marriage between the parties is dissolved by decree of divorce.’
___________________________________________________________________
J U D G M E N T
__________________________________________________________________

LEACH JA (MTHIYANE DP, CLOETE AND MHLANTLA JJA AND BORUCHOWITZ
AJA concurring.)

[1] The appellant appeals against an order obliging him to pay R2 000 per month
to the respondent, his wife of almost 29 years, upon dissolution of their marriage. His
principal objection against the order lies in the fact that for some eight years prior to
the divorce the respondent had been cohabiting with another man. This, the
appellant contends, disentitles her from receiving maintenance from him. In the
alternative, the appellant suggested the sum of R2 000 per month is in any event too
high given his straitened finances.

[2] The parties were married out of community of property in December 1972.
Two sons, both now majors and self-supporting, were born from their union. In
December 2000, after 28 years of marriage, the appellant left the matrimonial home
in Port Elizabeth as he had formed a relationship with another woman and had
decided on a new life. He purchased another residence in the city, but his new
relationship also failed and within six months he had formed an intimate relationship
with another man with whom he has since been cohabiting. They left Port Elizabeth
and at the time of the trial in the high court were living in Steytlerville, a small town in
the rural areas of the Eastern Cape.

[3] The respondent was friendly with a married couple, Tim and Diana Smith,
whom she had come to know some years previously when their sons attended the
same school. In April 2001, shortly after the appellant had moved out of the common
home, Diana Smith passed away. In September 2001 (by which time the appellant
was already cohabiting with his male partner) a relationship began to blossom
between the respondent and Tim Smith. With the passage of time the relationship
became more intimate and, in April 2003, the respondent moved into both Mr
Smith’s home and bedroom, and they thereafter cohabited as man and wife. During
the first two years that they had lived together the respondent’s youngest son, Mark,
who was at university at the time, lived with them as well.

[4] In the meantime, in February 2003, the respondent issued a divorce
summons out of the Port Elizabeth High Court in which, as ancillary relief, she
claimed payments of maintenance for both Mark and herself, and payment of a sum
equivalent to one half of the value of the appellant’s estate. The parties thereafter
entered into settlement negotiations and, in September 2003, some six months after
the appellant had commenced to live with Mr Smith, a deed of settlement was
concluded in which the appellant undertook to pay the respondent R3 000 per month
as maintenance until her death or remarriage and to retain her as a beneficiary on
his medical aid scheme. In addition the appellant also agreed to make various
payments in respect of Mark’s upkeep and to pay various monetary amounts.

[5] Unfortunately for all concerned, the appellant had run into financial difficulties
and was sequestrated the day before the divorce hearing. As a result, the judge
hearing the matter indicated that he would not be prepared to make the terms of the
settlement an order of court, apparently being of the view that certain of its
provisions could not be enforced by reason of the appellant’s sequestration. As a
result the divorce did not proceed and remained unresolved. The appellant
continued living with his partner and the respondent cohabiting with Mr Smith.
Moreover, pursuant to the sequestration the respondent’s assets were frozen in
terms of the Insolvency Act 24 of 1936. This led to litigation between the appellant’s
trustee on the one hand and the respondent on the other, which only ended late in
2007 when a settlement agreement was concluded which led to her assets being

released. Despite this, the divorce proceedings were held in abeyance for several
years. However, by the time the parties eventually took the matter to court (in
February 2010) they had settled all proprietary claims and the only outstanding issue
the high court was asked to decide was the question of the respondent’s claim for
maintenance.

[6] After they separated, the appellant initially retained the respondent as a
beneficiary on his medical aid scheme. He undertook to continue to do so in the
settlement agreement which was not implemented due to his sequestration.
Unfortunately, he removed her as a beneficiary of the scheme in 2006 and, when the
respondent was diagnosed with cancer of the jaw in April 2009, she was personally
obliged to pay for the urgent surgery she required. By the time of the trial in February
2010, the respondent had spent almost R180 000 on treating her cancer and was
due to undergo further surgery in the near future to cover a gaping hole in her cheek,
an unfortunate consequence of the treatment. The anticipated surgery was to be
carried out at a state hospital, rather than at a private institution, but the future cost
of treating her condition was not known.

[7] When the respondent first moved in with Mr Smith, she insisted upon, as she
put it, ‘paying her own way’, and did in fact pay him a total of R25 000 in respect of
accommodation between May and November 2003. However, after her assets were
frozen she had to rely on Mr Smith’s generosity, and he supported and maintained
her (and Mark for the two years he lived with them) although the appellant did make
some contributions towards Mark’s education expenses. That continued after the
respondent’s assets were restored in late 2007, but she does not appear thereafter
to have made any regular or substantial contribution towards the expenses of the
joint household she shared with Mr Smith. She seems in the main to have used her
assets to pay for certain personal items of expenditure, such as entertainment, her
hairdresser, her cell phone account and an amount she pays one of her sons to
reimburse him for having her as a dependant on his medical aid. She also made odd
contributions by purchasing household items such as a hi-fi and a washing machine.

[8] Although the evidence establishes that when the respondent initially moved in
with Mr Smith it was regarded as a temporary arrangement, the relationship between

them matured over the almost eight years that they had lived together before the
trial. By then they both regarded their relationship as permanent and neither had any
intention of terminating it. Mr Smith supported the respondent unconditionally and
was prepared to continue to do so indefinitely. By the same token, not only was the
respondent being maintained by him but she, reciprocally, assisted him in his
business, for which he paid her a small gratuity.

[9] Importantly, the first time the respondent sought to recover any maintenance
from the appellant after the divorce proceedings were instituted, was in February
2010 when she brought proceedings under Uniform rule 43 seeking maintenance
pendente lite (an application which failed when Hartle AJ refused the order sought
as she concluded that there was no reasonable prospect of the respondent
recovering maintenance when the matter came to trial). And it is not without
significance that when the opportunity to settle the divorce action arose in early 2008
(after her assets had been restored to her), the respondent refused to sign a
settlement agreement; not on the basis that it contained no maintenance for her, but
because  it made no provision for the appellant to reimburse Mr Smith in any way for
the support he had provided Mark. This all indicates the relationship she had with Mr
Smith was of such a nature that she neither required nor sought maintenance from
the appellant.

[10] From this it is clear, as was indeed common cause at the trial, that the
respondent and Mr Smith had, for almost eight years, lived together ‘as man and
wife’ in that, although they were not formally married, they had lived together in the
same home, had a common household which they maintained and to which they
contributed, and maintained an intimate relationship.1 Put differently, they lived
together in a fixed and stable relationship in which they mutually regarded each
other as a permanent  partner.

[11] Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G;
Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O)
para10 it was argued, both in the high court and in the appellant’s heads of

1 Cf Drummond v Drummond 1979 (1) SA 161 (A) at 167A-C.

argument, that it would be against public policy for a woman to be supported by two
men at the same time. While there are no doubt members of society who would
endorse that view, it rather speaks of values from times past and I do not think in the
modern, more liberal (some may say more ‘enlightened’) age in which we live, public
policy demands that a person who cohabits with another should for that reason
alone be barred from claiming maintenance from his or her spouse. Each case must
be determined by its own facts,2 and counsel for the appellant (whom I must hasten
to add had not been responsible for the preparation of the appellant’s heads of
argument) did not seek to persuade us to accept that the mere fact that the
respondent was living with Mr Smith operated as an automatic bar to her recovering
maintenance from the appellant. Instead he argued that the respondent had failed to
prove that she was entitled to a maintenance order in her favour. It is to that issue
that I now turn.

[12] Under the common law, the reciprocal duty of support existing between
spouses, of which the provision of maintenance is an integral part,  terminates upon
divorce. This might well cause great hardship and inequity particularly where one
spouse, during the subsistence of the marriage, has been unable to build up an
estate and has reached an age where he or she is unable to realistically earn an
adequate income ─ the classical case being that of a woman who has spent what
would otherwise have been her active economic years caring for children and
running the joint household.  This potentially iniquitous situation is alleviated by s 7
of the Divorce Act 70 of 1979.  Section 7(1) which provides for a court on granting a
decree of divorce to make a written agreement between the parties in regard to the
payment of maintenance by one party to another an order of court ─ while in other
cases s 7(2) provides:
‘In the absence of an order made in terms of subsection (1) with regard to the payment of
maintenance by the one party to the other, the court may, having regard to the existing or
prospective means of each of the parties, their respective earning capacities, financial
needs and obligations, the age of each of the parties, the duration of the marriage, the
standard of living of the parties prior to the divorce, their conduct in so far as it may be

2 In this regard the various English cases to which we were referred, such as Grey v Grey [2009]
EWCA Civ 1424 and K v K (2006) 2 FLR 468 (FD); [2005] EWHC 2886 (Fam) were of no meaningful
assistance, set as they are in a statutory matrix which differs from that of this country.

relevant to the break-down of the marriage, an order in terms of subsection (3) and any
other factor which in the opinion of the court should be taken into account, make an order
which the court finds just in respect of the payment of maintenance by the one party to the
other for any period until the death or remarriage of the party in whose favour the order is
given, whichever event may first occur.’

[13] It is trite that the person claiming maintenance must establish a need to be
supported. If no such need is established, it would not be ‘just’ as required by this
section for a maintenance order to be issued. It is on this issue that the respondent’s
claim must fail. Both she and the appellant had moved on with their respective lives
and had formed intimate and lasting relationships with others. As I have stressed, for
almost eight years prior to the divorce hearing the respondent had lived as another
man’s wife: a man who provided for her needs, put a roof over her head and in all
factual respects treated her as his partner in life. This was a situation which both she
and Mr Smith regarded as permanent and which they intended would remain so.

[14] The respondent was therefore being fully maintained by her new partner in
life, and had no need for that maintenance to be supplemented in any way. This is
borne out not only by the financial figures she produced indicating the amount of
maintenance Mr Smith was spending on their joint household but also by her failure
to claim maintenance from the appellant until, almost as an afterthought, rule 43
proceedings were launched in February 2010. As already mentioned, it is also
shown by her attitude in refusing to sign the proposed settlement agreement earlier
offered to her solely as it made no provision for Mr Smith to be reimbursed for
supporting, not her, but her son Mark. Accordingly, the respondent’s claim simply
fails at the first hurdle as she failed to show that she actually required maintenance
from the appellant.

[15] It is apparent from the above that, the high court erred in concluding that the
respondent had in fact established a claim for maintenance against the appellant.
The appeal against the maintenance order must therefore succeed.

[16] Turning to the question of costs, although the appellant has succeeded in this
appeal, counsel for the appellant informed us that the appellant did not seek to have

the respondent pay the costs of the appeal. Nor did he seek to rely upon a relevant
open tender made under Uniform rule of court 34 on 29 July 2009 to argue that the
respondent should pay the costs below from that date. Instead he suggested that no
order should be made in respect of the high court proceedings. This was a
commendable attitude given the length and history of the marriage and one which I
understood the respondent’s attorney accepted would be appropriate if the appeal
was to succeed. In regard to the order of the high court, this can be brought about by
merely deleting paragraphs 2 and 3 of the order it made, leaving only the divorce
decree extent.

[17] In the result the following order will issue.

The appeal succeeds and the order of the high court is amended to read as follows:
‘The marriage between the parties is dissolved by decree of divorce.’

______________________
L E Leach
Judge of Appeal

APPEARANCES:

For Appellant:

A Beyleveld SC

Instructed by:

Spilkins Inc, Port Elizabeth

Symington & De Kok, Bloemfontein

For Respondent:

G J Friedman (Attorney)

Instructed by:
Friedman Scheckter, Johannesburg

Matsepe Inc, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  22 March 2012
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Neutral citation: Harlech-Jones v Harlech-Jones (188/2011) [2012] ZASCA 19 (22 March
2012)

The parties, who were married to each other in December 1972, were divorced in January
2011. In terms of the divorce order, the appellant (the former husband) was ordered to pay
the respondent the sum of R2 000 per month as maintenance with effect from 1 February
2011. With leave of the high court, the appellant then appealed to the Supreme Court of
Appeal solely against the maintenance order.

By the time the divorce was granted, both parties had formed relationships with other
partners, and the respondent had been living for some eight years with another man who fully
and unconditionally maintained her. The Supreme Court of Appeal rejected the contention
that it would be against public policy for a woman to receive support from two men at the
same time, and concluded that public policy did not demand that a person who cohabits with
another should for that reason alone be barred from claiming maintenance from his or her
spouse. However, in the light of the facts of the present case, where the respondent was being
fully maintained by the man with whom she had been living for years in a permanent

relationship in which each regarded the other as his or her partner in life, the respondent had
failed to show that she was entitled to receive maintenance from her former husband.

The appeal therefore succeeded, and the maintenance order was set aside.

---ends---