HINGESTON v LIGHTFOOT 1999 (2) ZLR 281 (H)

Flynote

Family law — divorce — maintenance — of children — consent paper in which father agreed to pay for "ongoing education" of children — consent paper — interpretation of — to be construed as requiring him to pay for tertiary education — not necessary for court to directly specifically that maintenance should extend beyond age of 18 years

Headnote

In the consent paper agreed to following their divorce, the parties agreed that the husband would be responsible for the costs of the "ongoing education" of the 3 children of the marriage. The husband refused to pay the costsof the children's university education, arguing that his obligation to pay for their education ceased when they reached the age of 18 years, unless the court, acting in terms of s 8(3) of the Matrimonial Causes Act [Chapter 5:13], directed specifically that the obligation to pay maintenance extended beyond the age of 18 years.

Held, that it was not necessary for the court to make such a specific direction, if the consent paper clearly implied that education costs would continue to be payable after the child attained the age of 18 years. In interpreting the consent paper, the court should have regard to the context, the background circumstances, and extrinsic evidence of previous negotiations and correspondence and subsequent conduct of the parties.

Held, further, that there were sufficient indications in the consent paper that the parties intended that the husband would pay for educational costs after the children reached the age of 18, though not indefinitely.

Held, further, that in respect of payments made by the wife more than three years previously, these were prescribed. They were not judgment debts, as each particular expense became a debt due by the husband when it was actually incurred.