Thomson v Thomson

The appellant and respondent were divorced in 1974 after a 25-year marriage. The divorce settlement agreement, made an order of court, required the appellant to pay R400 monthly maintenance and to keep the respondent on his medical aid scheme or personally pay her reasonable medical, dental, hospital, and pharmaceutical expenses. The appellant remarried and the respondent was removed from his medical aid. The respondent joined her employer's medical aid in 1982. No claims were made against the appellant for medical expenses or increased maintenance until 1996, when the respondent underwent a triple-bypass heart operation incurring R78 088.68 in expenses, mostly covered by her medical aid apart from R2 945. The appellant refused to pay. The respondent issued a writ of execution, prompting the appellant to apply to set it aside and seek a declarator that the respondent had waived her rights. The respondent counter-applied for payment of R78 088.68, an increase in maintenance to R2 000 per month, and a contempt of court finding. The maintenance increase issue was referred to the magistrates' court; the waiver and contempt issues were dismissed. The court a quo (Gautschi AJ) found for the respondent on the medical expenses, holding that expenses covered by the medical aid did not lose their character as medical expenses, and granted judgment for R78 088.68.

• Whether a claim for future medical expenses arising from a divorce settlement agreement constitutes a maintenance claim or a claim for specific performance in contract
• Whether the High Court should adjudicate the enforcement of a medical expenses component of a maintenance order, or whether the matter should be referred to the maintenance court
• Whether the court a quo erred in granting judgment for the full amount of medical expenses without considering the personal, financial, and equitable circumstances of the parties as required in maintenance matters

The appeal was upheld and the judgment of the court a quo was set aside. The issue of medical expenses was referred for hearing to the maintenance court, to be heard together with the respondent's claim for an increase in maintenance, to be dealt with in terms of the provisions of the Maintenance Act 99 of 1998. Each party was ordered to pay his/her own costs.

A claim for future medical expenses arising from a divorce settlement agreement is a maintenance claim, not a contractual claim for specific performance. Where enforcement of a maintenance order is resisted on grounds of inability to pay, lack of need, fairness, or equity, the High Court should refer the matter to the maintenance court for an enquiry under the Maintenance Act 99 of 1998, rather than adjudicate it as an ordinary civil claim. The maintenance court is the appropriate forum to apply the criteria of fairness, equality, and sensitivity required by the Act, and all components of a maintenance obligation should be determined in a single forum.

The court expressed no firm views on whether principles of collateral benefits derived from the law of delict or contract are relevant in the law of maintenance. The court also noted that other relevant circumstances, such as the possible duty of support owed by the parties' adult children, might be relevant to a fair maintenance determination.

Thomson v Thomson clarifies that medical expenses ordered in a divorce settlement are part of the broader maintenance obligation and must be treated as such for enforcement and variation purposes. It reinforces the jurisdiction of maintenance courts under the Maintenance Act 99 of 1998 to vary or discharge High Court maintenance orders and establishes that the High Court should refer enforcement disputes involving equitable considerations to the maintenance court for a holistic enquiry. This case is important for delineating the proper forum for post-divorce maintenance disputes in South African law.