Carol Kempen v David Richard Kempen

The applicant and respondent were married in 1996 and divorced on 25 September 2002. Their divorce order incorporated a consent paper which provided for maintenance of their only child Courtney and the applicant's rental expenses in Zimbabwean dollars. After dollarization in February 2009, the respondent voluntarily started paying US$500.00 per month, later reduced to US$400.00 with the applicant's consent due to changed schooling arrangements. From February 2013, the respondent stopped paying maintenance entirely. The applicant admitted cohabiting with another person during periods up to and including January 2010 and for five months from December 2013 to April 2014. The consent order required the respondent to maintain the minor child on his medical aid cover, but the applicant took over this responsibility from 1 August 2007 after the respondent allegedly requested her to do so as he was unable to meet the obligation. The respondent's current wife also started paying for the child's medical aid cover from 20 August 2008.

• Whether a consent order sounding in Zimbabwean dollars that had become inoperative after dollarization could be varied to sound in US dollars
• Whether arrear maintenance could be claimed when the original order sounded in prescribed currency
• Whether the applicant's cohabitation with another person extinguished her right to maintenance from the respondent
• Whether the respondent was liable to reimburse the applicant for medical aid subscriptions she paid on behalf of the minor child
• How to apportion the agreed US$400.00 maintenance between the child and the applicant based on the original consent order ratios

The court ordered: (1) Respondent to pay US$3,026.00 for reimbursement of medical aid subscriptions; (2) Respondent to pay US$5,599.80 in arrear maintenance for the child; (3) Deletion of clause 3.2 of the consent paper; (4) Amendment of clauses 2.1 and 2.3 by consent substituting "Plaintiff" for "Defendant" and vice versa due to the child's relocation to Zambia; (5) Respondent to pay the applicant's costs of suit.

A consent order incorporated into a court order does not prescribe merely because it becomes inoperative due to currency changes; it remains extant and subject to variation under the Maintenance Act and Matrimonial Causes Act. A party who voluntarily accepts and performs maintenance obligations in a new currency for a substantial period (four years) cannot later deny such obligations on the basis that the original order sounded in a different, now-defunct currency. When a consent order provides that maintenance shall cease upon cohabitation with another person, cohabitation extinguishes the right to maintenance. Arrear child maintenance is recoverable under s 11 of the Matrimonial Causes Act when one spouse has incurred maintenance expenses that were the other spouse's responsibility, and the obligated spouse cannot avoid liability by claiming the order had not been varied when he himself voluntarily complied with the obligation in the new currency.

The court observed that the respondent's bare denial regarding the medical aid subscription arrangement was unconvincing, particularly in light of the fact that his current wife had also started paying for the child's medical aid cover at approximately the same time. The court noted that had the respondent chosen to tell the truth, he would have been able to explain that he subsequently made other arrangements and told the applicant to stop paying. The court also noted that the issue regarding the child's traveling to and from Harare did not require a finding because the child, who had attained majority during the proceedings, had refused to visit the applicant during the December 2014/January 2015 holiday.

This case is significant in Zimbabwean family law jurisprudence (and relevant to South African law by analogy) as it addresses the variation of maintenance orders following currency changes and economic upheaval. It clarifies that consent orders incorporated into court orders remain valid and can be varied even when their provisions become inoperative due to currency changes. The case also demonstrates the application of statutory provisions allowing for recovery of arrear maintenance under s 11 of the Matrimonial Causes Act and establishes that a party cannot deny voluntary acceptance of maintenance obligations, particularly when consistently performed over several years. The judgment provides guidance on interpreting cohabitation clauses in consent papers and their effect on maintenance obligations.