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The legal position

Under our law, parties to a marriage have a reciprocal duty to support each other, which duty comes to an end when the marriage is terminated as a result of divorce or death.

At common law a spouse has no right to maintenance upon divorce. Section 10(1) of the Matrimonial Affairs Act (No. 37 of 1953) remedied this situation by providing as follows:

"The Court granting a divorce may, notwithstanding the dissolution of the marriage-

(a) make such order against the guilty spouse for the maintenance of the innocent spouse for any period until the death or until the remarriage of the innocent spouse, whichever event may first occur, as the Court may deem just; or

(b) make any agreement between the spouses for the maintenance of one of them an order of Court...."

So from then onwards, agreements for the payment of maintenance after divorce could be made orders of Court. And, in the absence of an agreement, the Court could compel the guilty party to pay it, whether he/she liked it or not.

Section 10(1) of the Matrimonial Affairs Act has since been repealed by sections 7(1) and 7(2) of the Divorce Act No. 70 of 1979 – which only differs to the extent that it has omitted the distinction between guilt and innocence (since fault has fallen away when it came to divorce), and added a number of factors to be considered by the Court when granting an order for the payment of maintenance. Otherwise, however, the structure remained the same.

These sections read as follows:

"7(1) A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.

7(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the breakdown of the marriage, an order in terms of subsection (3) and any other factor which, in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur."

What happens when your ex-spouse dies?

Now let's look at what happens when your ex-spouse dies – do you lose your maintenance claim as awarded in terms of section 7 or does the obligation devolve onto his/her deceased estate?

The statutory exception set out in section 7 (quoted above) has clearly altered the common law rule in terms of which the duty of support ends at divorce. This statutory exception relates, however, only to those cases where the marriage was terminated by divorce – not by death. Put differently, the common law position (i.e. that the reciprocal duty of support comes to an end when the marriage is terminated as a result of divorce or death) operates without qualification in the event of the death of the person paying maintenance – unless he/she specifically agreed otherwise.

One thus has to consider whether the maintenance order in question was granted in terms of section 7(1) (i.e. an agreement between the parties which was made an order of court) or was an order for rehabilitative maintenance in terms of section 7(2).

If one has a look at the wording of section 7 as quoted above, it's clear that section 7(1) (unlike section 7(2)), places no limit upon the period for which maintenance may be ordered. It is only where the parties have not entered into an agreement and where the Court acts in terms of the discretion bestowed upon it by section 7(2) that the Court is limited in that it may not grant maintenance for a period longer than until the death or remarriage of the party receiving the maintenance, whichever event first occurs. In other words, section 7(2) of the Divorce Act does not empower the Court to grant an order for the payment of maintenance which survives the death of the party paying maintenance (thereby binding his/her estate).

The above has been confirmed by the Supreme Court of Appeal in the matter of Kruger NO v Goss and another [2010] 1 All SA 422 (SCA). The first respondent had been married out of community of property with the exclusion of the accrual system. Upon termination of her marriage by divorce three years later, the respondent had no capital claim against her former husband and had restricted her claim to one for rehabilitative maintenance in terms of section 7(2) of the Divorce Act. Her ex¬-spouse paid rehabilitative maintenance to her until August 2006. He passed away in September 2006, having paid 33 of the envisaged 57 monthly instalments. His son, the appellant, was appointed executor of the deceased estate. The first respondent lodged a claim against the deceased estate for the remainder of the rehabilitative maintenance, which she considered due to her, but the appellant rejected the claim. As a result, she approached the High Court for an order declaring that the estate was liable to pay her rehabilitative maintenance, and for payment of the amount allegedly due to her, with interest. The appeal was noted against the upholding of the claim - the question was thus whether an order for rehabilitative maintenance (pursuant to a decree of divorce) is enforceable by a spouse against her former husband's deceased estate.

The SCA held that the power to grant maintenance is confined not to the duration of the life of the spouse liable to pay, but rather to the life of the beneficiary spouse. HOWEVER, one must not look at section 7(2) in isolation. In terms of the common law, the duty of support which spouses owed each other, and consequently the liability for maintenance, are incidents of the matrimonial relationship. Termination of the relationship by death brings that duty to an end. The Maintenance of Surviving Spouses Act 27 of 1990 ("MSSA") allows widows and widowers, in specified circumstances, to be maintained from the estates of their late partners. This was limited legislative intervention, altering the common law to the extent set out therein. The common law rule remained otherwise untouched.

The SCA found that it could hardly be argued that before the MSSA came into being, divorced persons, whose erstwhile spouses had died, were in a more favourable position than widowed ones, giving them rights against the estates of people no longer married to them at the time of death which widowed spouses did not enjoy against estates of those to whom they were then still married. Section 7(2) of the Divorce Act therefore cannot be construed so as to alter the common law position.

What if the parties agreed to maintenance beyond death?

As stated above, section 7(1) of the Divorce Act makes provision for the Court to make a written agreement between the parties with regard to the payment of maintenance an order of court. This ties up to the principle that any person is free to agree to bind his/her estate after death. In the Kruger matter the SCA held as follows at paragraph 16:

"[16] Of course a spouse is free to agree to bind his/her estate to pay maintenance after death. That is not what occurred in the present case. To allow maintenance claims of the kind encountered here against deceased estates might have all sorts of undesirable consequences. The legitimate claims to maintenance of minor children might be diminished or excluded. And, the rights of beneficiaries might be implicated...."

What about fund death benefits?

It's very important to remember the SCA ruling in Kruger (as discussed above) dealt with the issue of whether or not an order for rehabilitative maintenance is enforceable by a spouse against her former husband's deceased estate - not the distribution of a fund death benefit in terms of section 37C of the Pension Funds Act No. 24 of 1956.

When a member of a retirement fund dies before reaching retirement age (and if the rules of the particular fund permit) the lump sum benefit which becomes payable (hereinafter referred to as the "death benefit") must be paid to the member's dependants and/or nominees. Section 37C(1) specifically provides that regardless of the provisions of any other law, including the common law, and notwithstanding the rules of a registered fund, all death benefits payable by a fund upon the death of a member shall not form part of the assets in the estate of such member, but shall be dealt with in terms of the scheme outlined in the said section.

In the Muller v Central Retirement Annuity Fund and another [2014] 2 BPLR 265 (PFA) the complainant's husband was a member of the first respondent pension fund by virtue of purchasing two retirement annuity fund policies. He died in July 2008, at which time a death benefit became payable to his dependants. The trustees of the fund conducted an investigation to identify the beneficiaries and decided to award R157 015.90 of the benefit to the complainant as the surviving spouse and R75 000 to the ex¬-spouse of the deceased. Dissatisfied with the inclusion of the deceased's former spouse in the distribution of the benefit, the complainant submitted that the policies were part of her and the deceased's estate planning, to provide for her after his death, which was why she was nominated as the sole beneficiary of both policies. She averred that upon the deceased's divorce from his former spouse, the latter began to receive a monthly maintenance. Although the complainant assumed that the payment of R75 000 by the fund was based on the future loss of maintenance, she alleged that the ex¬-spouse had successfully claimed maintenance against the deceased estate.

The Adjudicator reiterated that payment of death benefits is regulated by section 37C of the Act, read in conjunction with the definition of a dependant in section 1. The primary purpose of this section is to protect those who were financially dependent on the deceased during his lifetime. In effect, section 37C takes precedence over the freedom of testation of the deceased. It's the trustees' responsibility when dealing with the payment of death benefits to conduct a thorough investigation to determine the dependants, to thereafter decide on an equitable distribution and finally to decide on the most appropriate mode of payment of the benefit. The facts show that the board of management of the first respondent accepted that the complainant was a dependant of the deceased. She qualified as a legal dependant in terms of the definition in section 1 of the Act. Therefore, the board correctly identified the complainant as the deceased's legal dependant. The complainant's contention is that the trustees erred in considering the deceased's ex-spouse as his legal dependant, because she lost her legitimate claim for maintenance on the day of his death. The settlement agreement, that was incorporated into the court order between the deceased and his ex-spouse did not provide for a lifelong payment of maintenance. In this regard, the complainant referred this Tribunal to the SCA ruling in Kruger (above), where the issue was whether or not an order for rehabilitative maintenance, pursuant to a decree of divorce, is enforceable by a spouse against her former husband's deceased estate. Section 37C of the Pension Funds Act states that fund death benefits do not form part of the deceased's estate. Consequently, the SCA ruling in Kruger (above) was not applicable to the complaint. The complaint was accordingly dismissed.

Conclusion

As can be seen from above, it's important to distinguish contract law from the law of maintenance. Anyone can bind his/her estate, by contract or by will, to pay maintenance after their death. Whether or not the liability to pay maintenance survives the death of the person paying and passes onto his/her estate, however, depends on the terms of the agreement.

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