KOK v MAXWELL 2014 (1) ZLR 578 (H)

Flynote

Family law — husband and wife — maintenance order — variation — good cause for variation — what constitutes — maintenance of children — subsequent re-marriage of person paying maintenance — whether priority should be given to children of first marriage — tertiary education — whether should be included in maintenance order even though child above age of majority

An appropriate court may on good cause shown vary suspend or rescind an order for maintenance made in terms of s 7 of the Matrimonial Causes Act [Chapter 5:13]. As to what constitutes "good cause", the two cardinal points which must guide courts in dealing with applications for alterations of maintenance are (a) a change in financial circumstances and (b) the ability of the person being ordered to provide maintenance to pay the increment sought. A change in needs and obligations brought on by a spouse's remarriage amounts to good cause. Where a divorced man with maintenance obligations towards his first family remarries, it is superficial and unrealistic to suggest that the first family must continue to be maintained at the same standard regardless of her former husband's subsequent commitments. The obligations owed to the first wife and children are properly regarded as a first charge, but subsequent commitments will possibly reduce the husband's capacity to maintain the first wife to the extent originally decreed. In order to accommodate both needs, the standards of living of all parties may possibly have to be reduced, with the second family playing a subordinate role to the first. In assessing the needs of all concerned, a variety of considerations would obviously have to be examined, and the ultimate decision would be based on an evaluation of all these considerations.

The 2013 Constitution appears to lend interpretative support in favour of an "equalisation" as opposed to a "first family" approach in assessing any child's needs. Non-discrimination in general is the ethos underlying the Constitution. Section 81(1), which deals with the rights of children, accords rights equally to every child.

With regard to tertiary education, although child support can be terminated on grounds such as majority status or emancipation, among others, it is now generally the reality that parents can reasonably expect that their obligations towards their child support will go beyond the children's majority status. Where parties have express agreements in their divorce orders, such an obligation would at most extend up to the first degree. In an increasingly competitive world, college education is frequently an indispensable stepping stone.