The first appellant and the respondent were married in community of property and divorced in August 2017. Their decree of divorce incorporated a settlement agreement obliging the first appellant to pay monthly maintenance to the respondent until her death or remarriage. After the divorce, the respondent cohabited with another man, Mr Visagie, and participated in a religious Christian ceremony in December 2017 which resembled a wedding but was expressly not solemnised or registered under the Marriage Act. Relying on legal advice, the first appellant stopped paying maintenance, contending that the respondent had remarried. The respondent denied this, sought enforcement of the maintenance order, and alleged contempt of court. The High Court ruled in her favour, found contempt, and made punitive costs orders, including a costs de bonis propriis order against the first appellant’s attorney. The matter came before the Supreme Court of Appeal.
The appeal was upheld. The High Court order was set aside and replaced with an order declaring that the December 2017 ceremony did not constitute a remarriage; varying the settlement agreement to include cohabitation as a terminating event for maintenance going forward; setting aside the contempt finding; and directing the respondent to pay the costs of the application and the second appellant’s costs of appeal. Each of the first appellant and the respondent was ordered to pay their own appeal costs.
The case clarifies that, unless clearly indicated otherwise, the term 'remarriage' in divorce settlement agreements refers to a legally recognised marriage. It affirms strict adherence to statutory requirements under the Marriage Act when determining marital status and provides guidance on the interpretation of maintenance clauses in divorce settlements. It also reinforces limits on contempt findings and the strict standards for granting costs de bonis propriis against legal practitioners.