Bailey and Another v Bailey

The first appellant (Mr Bailey) and the respondent (Mrs Bailey) were married in community of property on 28 February 1987 and divorced on 28 August 2017. Their decree of divorce incorporated a settlement agreement obliging the first appellant to pay R10,000 monthly maintenance to the respondent "until her death or remarriage whichever occurs first." After the divorce, the respondent cohabited with Mr Visagie. On 9 December 2017, a Dutch Reformed Church minister conducted a ceremony blessing their cohabitation to avoid "living in sin." The ceremony resembled a wedding but was not registered as required by the Marriage Act. The respondent posted photos on Facebook referring to Mr Visagie as her husband. Upon learning of this, the first appellant stopped paying maintenance on the basis that the respondent had remarried. The respondent then laid a criminal charge for non-payment of maintenance and applied to the high court for an amendment of the settlement agreement and to hold the first appellant in contempt. The high court found the ceremony did not constitute remarriage, held the first appellant in contempt for earlier deductions, and mulcted the second appellant (the first appellant's attorney) with costs de bonis propriis.

• Whether the word 'remarriage' in the settlement agreement means only a marriage formally registered in terms of the Marriage Act or includes other forms of union or cohabitation
• Whether the religious ceremony conducted on 9 December 2017 constituted a 'remarriage' within the meaning of the settlement agreement
• Whether the first appellant was in contempt of court for non-payment of maintenance
• Whether a costs order de bonis propriis against the second appellant (attorney) was justified
• Whether the high court's costs order on an attorney and client scale was appropriate

The appeal was upheld. The order of the high court was set aside and replaced with: (1) Paragraph 5.1 of the settlement agreement was amended to include "remarriage and/or cohabitation with another man in a common law marriage"; (2) A declaration that the ceremony on 9 December 2017 did not constitute remarriage within the meaning of the settlement agreement; (3) The respondent to pay costs of the application in the high court. There was no order as to costs of appeal as between the first appellant and respondent. The respondent was directed to pay the second appellant's costs of appeal.

The word 'remarriage' in a divorce settlement agreement, in the absence of express contrary indications, means a marriage recognized by South African law that complies with the formalities prescribed in the Marriage Act. A religious ceremony that does not comply with s 29A of the Marriage Act (requiring signing of the marriage register by the parties, marriage officer and witnesses, and transmission to Home Affairs) does not constitute a remarriage. The ordinary meaning of remarriage, the context of the settlement agreement (regulating consequences of dissolution of a legal marriage), the echo of the phrase in s 7(2) of the Divorce Act, and the subsequent agreed amendment all indicate the parties intended legal marriage. A costs order de bonis propriis against an attorney requires procedural fairness (proper notice and opportunity to respond) and substantive grounds showing gross incompetence, dishonesty, wilfulness or serious negligence.

The Court noted that if the respondent cohabits with a person who de facto contributes to her maintenance (though Mr Visagie did not on the evidence), the first appellant would have the remedy of approaching the maintenance court for variation or discharge of the maintenance order under s 6(1) read with s 16(1)(b) of the Maintenance Act 99 of 1998. Makgoka JA in dissent observed that the concept of 'marriage' has taken an elastic nature over recent decades, with African customary, Muslim, Hindu, Jewish and same-sex unions becoming accepted as marriages despite not fully complying with s 29A. He commented that courts should frown upon manipulative schemes to frustrate clear contractual intentions, and that the non-registration of the ceremony was a conscious decision aimed at preventing the remarriage clause from operating. The dissent also noted the settlement agreement was premised on an "archaic and sexist notion that the respondent needed a man to financially maintain her."

This case is significant for clarifying the interpretation of maintenance clauses in divorce settlement agreements, particularly the meaning of 'remarriage.' It confirms that unless expressly stated otherwise, remarriage refers to a legally recognized marriage complying with the formalities of the Marriage Act, not religious ceremonies without legal effect or mere cohabitation. The case reaffirms principles of contractual interpretation requiring courts to ascribe ordinary meaning to words in their context and avoid substituting what they consider reasonable for the parties' actual agreement. It also reinforces procedural requirements for de bonis propriis costs orders against attorneys, requiring proper notice and substantive grounds showing gross incompetence, dishonesty, or serious negligence. The case illustrates the importance of drafting settlement agreements with precision if parties intend broader meanings than legal terminology ordinarily bears.