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KENNETH DONALD ARRAND
versus
LORAINE JEAN ARRAND
HIGH COURT OF ZIMBABWE
UCHENA J
HARARE 4, 11 February and 8 May 2014
Opposed Application
Mrs J. Wood, for the applicant
C. Phiri, for the respondent
UCHENA J: The applicant was married to the respondent until 6 August 2009 when
they were granted a decree of divorce by this court. The divorce order granted the respondent
spousal maintenance in terms of their consent paper. The consent paper provided for the
respondent’s maintenance as follows;
“Until plaintiff’s death or remarriage defendant will pay to the plaintiff in cash
by way of personal maintenance (with effect from 1st July 2009 and thereafter
on or before the first day of each successive month) the sum of US$740-00 per
month”.
The applicant has been complying with the court order, but now seeks an order,
setting aside spousal maintenance on the basis that the respondent no longer needs it and that
it was in their contemplation that the consent paper could be varied. He also relies on his
changed circumstances as his salary has been reduced by a sum of US500-00 per month.
The respondent in her opposing affidavit said she still needs spousal maintenance as
her circumstances have not changed since the granting of the decree of divorce. She is now
aged 63 and suffers from various ailments. She said she cannot manage without the spousal
maintenance.
It is common cause that the parties in para 4 of their consent paper provided for
variation of the consent paper as follows;
“The provisions of this consent paper shall be variable on application by the plaintiff
or defendant to the High Court of Zimbabwe or other court of competent jurisdiction
on good cause.”
Mrs Wood for the applicant and Mr Phiri for the respondent agree that s 9 of the Matrimonial
Causes Act provides for variation on good cause. In this case the meaning of the word “vary”
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would be applicable in respect of the changing of the order on spousal maintenance leaving
the rest of the order as it is.
Section 9 of the Matrimonial Causes Act (Chapter--) provides as follows;
“Without prejudice to the Maintenance Act [Cap 5:09], an appropriate court may, on
good cause shown, vary, suspend or rescind an order made in terms of section seven,
and subsections (2), (3) and (4) of that section shall apply, mutatis mutandis, in
respect of any such variation, suspension or rescission.”
Section 9 provides for variation, suspension and rescission of an order on good cause.
The use of the three words in succession means each word carries a meaning which does not
encroach into the ambit of meaning of the other. This means the word “vary” does not mean
suspend or rescind. The Legislature clearly intended to provide for the three separate
scenarios. Each word must therefore be restricted to its ambit of meaning. That however does
not affect the applicant’s application as he merely seeks to vary the order granted by
removing from it, the maintenance provided for the respondent without rescinding the whole
order.
I must therefore proceed to consider the basis for such variation. The applicant says
they did not envisage the provision of maintenance for the respondent until her death or
remarriage. He in his founding affidavit said they intended to provide for her maintenance
until she could be able to look after herself which he says she is now able to. The respondent
said they did not and that is why they used words until death or remarriage, to provide for her
maintenance until one of those eventualities took place. None of them have occurred. The
question to be determined is the intention of the parties when they provided for the
respondent’s maintenance.
It may be possible that the applicant agreed to that clause in order to finalise the
divorce. If that is what he did he acted carelessly to his own prejudice. A party may promise
the other the earth in his or her desire to finalise a divorce. Such convenience may however
hound that party in the future as the courts cannot lightly interfere with a party’s exercise of
his right to agree on whatever he wants to provide for his former spouse. In the case of Buch
v Buch 1967 (3) T. P. D) 83 at p 85 E after finding the applicant’s reasons for seeking a
variation “very inadequate” at p 85 G-H to 86A CLASSEN J, said;
“No doubt where a man has solemnly entered into an agreement to maintain
his former wife he must, as far as possible, be held to his agreement. A court
will not lightly free him from that undertaking. The danger mentioned by Prof.
Hahlo in the 1966 South African Journal page 5 (and also 1965 S.A.L.J. 285
must also be guarded against.. He wrote;
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“It is common experience that a husband seeking release from the
marriage tie in order to be free to marry his lady love is willing to
promise his wife practically anything by way of maintenance if she
will agree to a divorce. It would be unfortunate if as a result of cases
such as Beneke 1965 (1) S.A 855 (T), husbands were to gain the
impression that they may safely promise their wives ‘the sky’ in the
confident expectation that the court will subsequently reduce the
maintenance payable to them as soon as they remarry. Indeed on the
reasoning of Beneke’case, the more unrealistic the amount the husband
promises to pay the greater the likelihood of a large subsequent
reduction, a doctrine hardly conducive to morality in matrimonial
bargaining”.
In this case the respondent was the plaintiff in the divorce case. The applicant was
therefore not the one seeking freedom from her but the other way round. It is inconceivable
that he had any deceitful reason to be generous to the respondent who was divorcing him to
the extent of providing for her maintenance until she dies or remarries. It seems to me that he
expressed his genuine intention in the consent paper. His claim that he did not mean what he
signed for is not consistent with the probabilities of the circumstances leading to their
divorce.
The words used in the consent paper are consistent with an intention to provide
maintenance till death or remarriage.
The intention suggested by the applicant is not
consistent with the words used. The words used by the parties do not admit of a temporary or
bridging maintenance. They are specific as to the events which were to terminate the
obligation to pay maintenance. Death or remarriage are events which cannot be mistaken for
bridging or temporary maintenance. I therefore, do not believe the applicant’s averments. I
would have believed him if he said they intended to vary the quantum of maintenance if there
was just cause.
The applicant’s salary was reduced. That in my view would be a just cause for
reducing the maintenance payable to the respondent. He however specifically applied for the
immediate cessation of the spousal maintenance. He did not leave any room for the court to
grant an alternative order. I am therefore left with no option but to dismiss his application
even though the reduction of his salary justifies the reduction of maintenance payable to the
respondent.
The applicant’s application is therefore dismissed with costs.
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Messers Thompson Stevenson & Associates, Applicant’s Legal Practitioners.
Messers Coghlan’Welsh & Guest, Respondent’s Legal Practitioners.