Odgers v De Gersigny

The parties married for seven years and had no children. Prior to their divorce on 5 March 1998, they concluded a written deed of settlement on 21 January 1998 providing, inter alia, for the appellant to pay maintenance to the respondent in specified monthly amounts for a fixed period. The agreement was silent on whether the obligation to pay maintenance would terminate upon death or remarriage, and it was not made an order of court. The respondent remarried on 2 May 1998. The appellant ceased maintenance payments after April 1998, arguing his obligation terminated upon the respondent's remarriage. The respondent sued for outstanding maintenance and ancillary relief, succeeding in the magistrates' court. An appeal to the Natal Provincial Division failed.

• Whether an implied term could be imputed by law into a deed of settlement not made an order of court, providing that payment of maintenance shall terminate upon the wife's remarriage or death.

The appeal was dismissed with costs.

Where spouses conclude a written settlement agreement in terms of s 7(1) of the Divorce Act governing maintenance, the agreement is purely contractual in nature and must be interpreted according to the express terms agreed upon by the parties. A term imposed by law (such as termination of maintenance on remarriage) cannot be implied if it conflicts with the express provisions of the contract. Parties are free to agree on the duration and extent of maintenance irrespective of remarriage or death, and no automatic common law termination on remarriage applies to such contractual maintenance obligations.

The court observed it was regrettable the parties could not resolve the dispute amicably, given the trifling amount of disputed maintenance compared to the costs incurred in litigating to the Supreme Court of Appeal.

This case clarifies the distinction between contractual maintenance agreements under s 7(1) of the Divorce Act and court-ordered maintenance under s 7(2). It establishes that parties to a divorce settlement agreement may contract for maintenance that survives remarriage, and courts will not imply a common law term terminating maintenance on remarriage where the contract is silent but contains express duration provisions. The SCA also authoritatively rejected the approach in Van der Vyver v Du Toit that had suggested s 7(2) principles should inform interpretation of s 7(1) agreements.