Elwyn Dale Harlech-Jones v Shirley Margaret Harlech-Jones

The parties were married out of community of property in December 1972 for almost 29 years and had two sons, both majors and self-supporting by the time of the trial. In December 2000, the appellant left the matrimonial home after forming a relationship with another woman. That relationship failed within six months, and he thereafter formed an intimate relationship with another man with whom he cohabited, moving to Steytlerville. In April 2001, after the appellant moved out, the respondent became friendly with Tim Smith after his wife Diana died. By April 2003, the respondent moved into Mr Smith's home and they cohabited as man and wife. This arrangement, initially regarded as temporary, became permanent over the almost eight years before the trial. Mr Smith fully maintained the respondent unconditionally, providing accommodation, support, and maintenance for her and her son Mark (who lived with them for two years). In February 2003, the respondent issued divorce summons claiming maintenance and half the appellant's estate. A settlement was reached in September 2003, but the appellant was sequestrated the day before the divorce hearing, preventing implementation. The respondent's assets were frozen until late 2007. By the time of trial in February 2010, all proprietary claims had been settled and only the maintenance claim remained. The respondent was diagnosed with cancer in April 2009 and spent almost R180,000 on treatment, as the appellant had removed her from his medical aid in 2006.

• Whether a spouse who has been cohabiting with another person in a permanent relationship and being fully maintained by that person is entitled to claim maintenance from their spouse upon divorce
• Whether public policy bars a person who cohabits with another from claiming maintenance from their spouse
• What factors must be considered under section 7(2) of the Divorce Act 70 of 1979 in determining whether a maintenance order should be granted
• Whether the respondent established a need to be supported by the appellant

The appeal succeeded. The order of the high court was amended to read: 'The marriage between the parties is dissolved by decree of divorce.' The maintenance order of R2,000 per month was set aside. No order was made as to costs in either the high court or on appeal.

A person claiming maintenance from their spouse upon divorce under section 7(2) of the Divorce Act 70 of 1979 must establish a need to be supported. Where a spouse has been cohabiting with another person in a permanent, stable relationship for an extended period and is being fully maintained by that person such that they have no actual financial need for support, it is not 'just' within the meaning of section 7(2) to grant a maintenance order against their former spouse, regardless of the other factors enumerated in that section. The failure to establish need is fatal to a maintenance claim. Cohabitation with another person does not automatically bar a maintenance claim as a matter of public policy in modern South African law, but it is a highly relevant factor in determining whether the claimant has established the requisite need for maintenance.

The court observed that the view that it would be against public policy for a woman to be supported by two men at the same time 'speaks of values from times past' and does not accord with modern, more liberal (or 'enlightened') society. The court noted that each case must be determined on its own facts. The court also made sympathetic observations about the potential hardship caused by the common law rule that the duty of support terminates upon divorce, particularly for spouses (classically women) who spent their economically active years caring for children and running the household, noting that section 7 of the Divorce Act alleviates this potentially iniquitous situation. The court commended the appellant's attitude in not seeking costs against the respondent given the length and history of the marriage.

This case is significant in South African family law as it clarifies that cohabitation with another person does not automatically bar a maintenance claim upon divorce as a matter of public policy, rejecting older, more conservative values. However, it establishes that such cohabitation is highly relevant to determining whether a need for maintenance exists. The judgment emphasizes that under section 7(2) of the Divorce Act, a claimant must establish an actual need for maintenance for it to be 'just' to grant such an order. Where a spouse is in a permanent, stable cohabiting relationship and is being fully maintained by their new partner, they will not be able to establish the requisite need for maintenance from their former spouse. The case represents a modern, fact-based approach to maintenance claims that balances liberal social attitudes with the practical realities of financial need, rather than applying rigid moral rules about cohabitation.