key to the study guide - Name

Section 8 of Divorce
Act Ð high court
Maintenance court
Expression not definable
Change in circumstances
Financial equality
Voluntary undertaking
of extra responsibilities
Firstly, make sure that you know that section 8 of the Divorce Act governs
rescission, suspension and variation of maintenance orders by the high
court. Note further that orders for maintenance which are made by the
high court upon divorce can also be varied by a maintenance court,
regardless of whether the maintenance order was issued in terms of section
7(1) or section 7(2) of the Divorce Act. However, there must be sufficient
reason for the rescission, suspension or variation of the maintenance order.
3.1 The meaning of ``sufficient reason''
On page 152 of the textbook you will see that the term ``sufficient reason''
is not definable, and that the question whether sufficient reason is present
will depend on the facts of each case.
A question which often arises, is whether there must be a substantial
change in the parties' circumstances before application can be made for
rescission, variation or suspension of a maintenance order in terms of
section 8 of the Divorce Act. On page 152 of your textbook it is explained
that although, in terms of the decision in Havenga v Havenga, changed
circumstances are not a prerequisite, there will normally be a change in
circumstances. You must study the discussion of Havenga in your textbook.
In the third and fourth paragraphs on page 152 your textbook looks at the
issue whether a maintenance order will be varied merely because one party
is dissatisfied with it or because the order leads to financial inequality
between the parties. First, reference is made to Sparks v Sparks very briefly
and then Reid v Reid is discussed in detail. In the Reid case it was held that
a maintenance order need not effect financial equality. Furthermore, it was
held in Reid that if a party agrees to an unjust settlement in respect of
maintenance on divorce, he or she cannot apply for variation purely on the
ground of this inequity. Only in special circumstances will the court permit
a person who applies for variation to question the justness of the existing
maintenance order. It is pointed out that if an existing maintenance order
has resulted in financial inequality between the parties, that inequality
should continue. You must bear in mind, however, that if the party who is
worse off proves that there is sufficient reason for a change, the
maintenance order will be varied. However, the mere fact that there is
financial inequality between the parties will not, in terms of the Reid case,
be ``sufficient reason''.
The courts normally refuse to allow variation of a maintenance order if the
reason why a person needs more maintenance or wants to pay less
maintenance is that he or she has voluntarily undertaken extra financial
responsibilities, for example by purchasing an expensive item on credit or
by remarrying. This rule is explained in the paragraph which runs from
page 152 to page 153 of your textbook.
Also, on page 153 of the textbook you will see that the mere fact that the
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