TERMINATION OF THE RESPONSIBILITY TO MAINTAIN
Maintenance can be for a specific period, like rehabilitative maintenance, but the maintenance order for a wife will lapse after remarriage by or death of the wife if the order was made in terms of Section 7(2) (Act 70/79) by the Court. If the order was made in terms of s7(1) in terms of an agreement – the maintenance will not lapse after the death or remarriage of the wife, unless so specified in the agreement (the so-called “dum casta” clause). The maintenance will also lapse on the death of the payer unless specifically agreed otherwise.
In Van der Vyver v Du Toit 2004 (1) SA 420 the Court held that Section s7 (1) place no restrictions on parties who agree that maintenance payments would continue even after the remarriage of the recipient spouse. In the absence of such an agreement, however, the Court is not empowered by s7(2) to make an order that the maintenance payments will continue after the remarriage of the recipient spouse.
In the event of the death of the payer of maintenance, the survivor (ex-spouse) will only have a claim against the estate of the payer if it is in terms of an agreement (not an order in terms of Section 7(2)). See Kruger NO v Goss and Another (supra).
Practitioners must take note of the provisions of Act 27 of 1990, the so-called Act for Maintenance of Surviving Spouses which provides for the maintenance of the surviving (married) spouse, and in which regard s 2(1) declares as follows: “If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings”. Note that this Act is retrospectively enforceable. This applies only to the surviving spouse. (Children have a common law claim whether it is a claim for maintenance or whether it be in a Court Order or a settlement).