It frequently happens that parties include a clause in a Divorce Settlement Agreement that neither party shall have the right, after divorce, to approach the maintenance court for a variation of the spousal maintenance. This however is not enforceable strictly speaking.
According to section 8 of the Divorce Act, 70 of 1979 a maintenance order, made in terms of this Act, may at any time be rescinded or varied by a maintenance court, if the court finds that there is sufficient reason.
In terms of section 6(1) of the Maintenance Act, a maintenance order (whether in terms of a settlement agreement or not) may be varied or discharged if a complainant can demonstrate “good cause” therefore.
It is clear that the court will always be able vary a maintenance order when there is sufficient reason to do so.
Although a settlement agreement is contractual in nature it may be argued that since it is impossible to foresee the future circumstances of the parties, considerations of fairness and justice should be applied.
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Author – Kate Bailey – Hill