key to the study guide - Name

Dum casta clause
party in whose favour the maintenance order operates lives with another
person does not constitute sufficient reason for rescission of the
maintenance order, except where a dum casta clause is included in the
maintenance order. Make sure that you know what the tenor of such a
clause is.
Inflation Inflation and the accompanying depreciation of money is often relied on
by a person who claims that he or she needs more maintenance. The courts
are not consistent in their approach to whether inflation on its own
constitutes sufficient reason for variation of a maintenance order. The
weight of case law seems to favour the view that inflation is merely one of
the factors to be considered and is not sufficient on its own. This point is
explained in the first paragraph on page 152 of your textbook.
Fraudulent non-disclosure
of information
196
Lastly, on page 153 of the textbook it is indicated under which
circumstances the fraudulent non-disclosure of information will constitute
sufficient reason for variation or rescission. Make sure that you understand
this discussion.
3.2 Waiver of the right to claim rescission, suspension or variation of a
maintenance order
You only have to read the discussion of this matter on pages 153±155 of
the textbook. All you have to know is that one or both of the parties may
waive the right to claim an increase or a decrease in maintenance, but that
the court will not easily find that such a waiver has taken place.
4 TERMINATION OF A MAINTENANCE ORDER
The discussion of post-divorce maintenance ends with an explanation (on
pp 155±156 of your textbook) of how maintenance orders come to an end.
Here you have to distinguish between orders made in terms of section 7(1)
of the Divorce Act, and those made in terms of section 7(2) of the Act.
4.1 An order in terms of section 7(1) of the Divorce Act 70 of 1979
If the maintenance order was made in terms of section 7(1) it comes to an
end on the date or upon the occurrence of the event stipulated in the
agreement between the spouses. Whether the duty to maintain continues
after the death of the party who has to pay maintenance, will also depend
on what is stipulated in the agreement. If the agreement is unclear the
courts will presume that the spouses wanted the duty to continue after the
death of the party who has to pay maintenance. Note also that the
question whether the duty to maintain continues after the remarriage of
the party who is entitled to maintenance has not yet been finally decided.