IN THE HIGH COURT OF SOUTH AFRICA [WESTERN CAPE HIGH COURT, CAPE TOWN]
Case No: 7032/03
In the matter between:

and

JUDGMENT DELIVERED: 24 FEBRUARY 2011

FOURIE, J:

[2] The background to the application may be briefly summarised as follows:

The parties were previously married to each other. The marriage was terminated upon this court issuing a decree of divorce on 17 October 2003, when a consent paper entered into between the parties was made an order of court. Paragraph I of the consent paper makes provision for the payment of maintenance by applicant to respondent until respondent's death, remarriage or cohabitation in a relationship analogous to that of husband and wife for a period exceeding 6 months, whichever event shall first occur. Applicant contends that respondent has been cohabiting with a third party, one Alistair Wood, in a relationship analogous to that of husband and wife for a period exceeding 6 months and he has accordingly ceased paying maintenance to respondent. The aforementioned warrants were issued by respondent in respect of the outstanding maintenance payments. Pursuant to an application brought by respondent regarding sendee of the warrants, applicant has launched this application.

[3] Respondent opposes the application on several grounds relating to the merits thereof, as well as on the basis that the matter is not urgent. In view of the conclusion that I have reached, it is not necessary for me to deal with the issue of urgency.

[4] Clause 1 of the consent paper, expressly provides that applicant's obligation to pay maintenance to respondent shall continue until her death, remarriage or cohabitation in a relationship analogous to that of husband and wife for a period exceeding 6 months, whichever event shall first occur. As I see it, the obligation to maintain respondent is subject to a resolutive condition (death or remarriage or cohabitation), the fulfilment of which would terminate applicant's obligation to effect payment of maintenance. Put differently, the obligation to pay maintenance shall continue until one of the events occur, which would terminate the obligation.

"I respectfully agree with the observations of EloffJ in the judgment of the Full Court, namely that it denotes:

'the basic of components of a marital relationship except for the formality of marriage...the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship'.

[13] In my opinion, the resolutive condition imposed by the parties in the consent paper, is clear. The event upon which the applicant's liability for the payment of maintenance would cease, is the living together of respondent and Wood in a relationship similar to that of husband and wife for a period exceeding six months, with the main components of such a relationship being their living under the same roof, having established, maintained and contributed to a joint household and maintaining an intimate relationship.

[14] If one now turns to the facts of this case, it is common cause that respondent and Wood are involved in a personal and intimate relationship. However, that is not sufficient to establish a relationship analogous to that of husband and wife. As indicated above, it has to be shown that, in addition to the intimate relationship, they are living under the same roof and have established, maintained and contributed to a joint household. Can it be said that, on the facts before the court, the latter two requirements have been established?

[15] I believe not. Il is common cause on the papers that respondent and Wood do not live under the same roof. She has her own residence in Newlands, while Wood's primary residence is on his farm at Franschoek. There is nothing to gainsay the allegation of respondent that they have never cohabited and very seldom see each other during the week. According to respondent, she visits Wood approximately three times per month and spends the weekend with him on such occasions. They have also never been on holiday together.

[16] It is clear from the papers that respondent and Wood have not established or maintained a joint household. She says that Wood has never contributed a cent towards her household expenses, nor has she contributed towards Wood's household expenses. What happens, is that when she visits him on the farm over weekends, she purchases food as she loves cooking and Wood then reimburses her for such expenses.

[17] It follows, in my view, that applicant has not shown that respondent and Wood are cohabiting, in the sense envisaged in the consent paper. They are not living together and therefore not cohabiting. Their relationship can also not be described as one analogous to that of husband and wife. I agree with the submission on behalf of respondent, that, at best, the evidence shows that they arc simply involved in a romantic relationship while the main components of a relationship akin to that of husband and wife, are absent.

[21] In the result the application is dismissed with costs, including the costs occasioned by respondent in regard to the substituted service application.