James Alan Crone v Mary Catherine Crone

The parties were divorced on 23 February 1994. The divorce order provided for maintenance of Z$4,000 per month to Mrs Crone, with provision for an arbitrator to determine adequacy once she moved to a new house. An arbitrator awarded Z$7,000 per month from 1 January 1995, and later Z$10,000 per month from 1 November 1996 based on cost of living as at 1 January 1997. On 16 July 1998, Mrs Crone sought a further increase to Z$17,500 per month. After failed negotiations, she served an application on 3 December 1998 for increased maintenance backdated to 1 August 1998. Mr Crone was based in the United States and earned income in US dollars. The High Court granted the application. Mr Crone appealed against both the amount and the backdating of the order.

• Whether a maintenance order can be backdated beyond the date of the application to court
• Whether the increase in maintenance from Z$10,000 to Z$17,500 per month was justified
• Whether the cost of living index and currency devaluation should be considered in determining maintenance
• Whether the respondent's other sources of income (ability to work and interest from overseas funds) should be taken into account
• The proper application of section 7(4) of the Matrimonial Causes Act

The appeal was dismissed with costs, save that the effective date of payment was altered from 1 August 1998 to 1 December 1998. The maintenance increase to Z$17,500 per month was upheld.

A maintenance order should not be backdated beyond the date of application to court. The increase in cost of living is in itself 'good cause' for an increase in maintenance. Courts may take judicial notice of government-published consumer price indices as a rough guide to changes in the cost of living. When determining whether to vary a maintenance order, the court must consider both the changed financial circumstances of the recipient and the ability of the payer to afford the increase. Where a maintenance payer earns foreign currency, currency devaluation may justify nominal increases in local currency maintenance even where this results in reduced real cost to the payer.

McNally JA observed that the Matrimonial Causes Act makes specific provision for arrear maintenance in respect of children (s 11) but not for former wives (s 9), supporting the restrictive approach to backdating. McNally JA also stated that arguments about specific expense items (newspapers, golf, staff overtime) were inappropriate where the overriding consideration was maintaining the recipient's standard of living based on cost of living increases. Ebrahim JA observed that it would be a distraction to require the respondent to use other property where no additional financial stress was placed on the appellant by the maintenance increase. Muchechetere JA (dissenting) emphasized modern trends away from treating marriage as a 'bread ticket for life' and noted that with the emergence of the working wife and women's liberation, courts worldwide are less willing to award permanent maintenance to able-bodied women, particularly younger women capable of working. He stated that 'living in Zimbabwe cannot be a free holiday for the respondent, to be financed by her former husband.'

This Zimbabwean case provides important guidance on variation of maintenance orders in contexts of high inflation and currency devaluation. It establishes that courts may take judicial notice of official cost of living indices when determining maintenance adjustments. The case demonstrates that where a maintenance payer earns in foreign currency, currency devaluation may actually reduce their real burden despite nominal increases in local currency. The case also addresses the limits of backdating maintenance orders. The dissenting judgment reflects evolving international trends toward limiting permanent maintenance and requiring former spouses to contribute to their own support where able. While this is a Zimbabwean decision, it has persuasive value in South African law given similarities in matrimonial legislation and the common reference to cost of living adjustments in maintenance matters.