Introduction
The judgment in KLW v CSW (202035177) [2025] ZAGPJHC 41 raises important questions regarding the application of Rule 43(6) of the Uniform Rules of Court and the judicial approach to maintenance variation applications in South African family law. This provision is designed to offer interim relief in matrimonial disputes, ensuring financial stability for spouses and children pending divorce proceedings. However, its application in KLW brings into focus the complexities of cohabitation, the evidentiary burden in maintenance disputes, and the best interests of minor children.
The court declined the applicant’s request for an increase in maintenance, largely on the basis that she had entered into a new cohabiting relationship. This judgment, while reflective of the court’s attempt to balance competing financial interests, raises concerns about whether sufficient consideration was given to the applicant’s financial dependency, the onus of proof in maintenance reduction applications, and the impact on the children involved.
A careful assessment of KLW suggests that the court’s approach, while well-intended, may have missed an opportunity to clarify and refine legal principles related to maintenance variations, particularly in cases where cohabitation is raised as a factor. This article critically examines the judgment within the broader framework of judicial consistency, financial disclosure, and constitutional principles, highlighting areas where a more nuanced approach may have resulted in a more equitable outcome.
Evaluating Financial Dependency in Maintenance Variation Applications
A key issue in KLW is how the court assessed the applicant’s financial dependency in the context of Rule 43(6). The applicant argued that her financial circumstances had materially worsened, justifying an increase in maintenance. The respondent, however, contended that her new cohabiting relationship had altered her financial position to the extent that increased maintenance was unwarranted.
Under Rule 43(6), an applicant seeking a variation must demonstrate that their financial situation has changed significantly since the initial order. Courts have consistently held that maintenance obligations should be based on actual financial need rather than assumptions about living arrangements. In Carstens v Carstens 1985 (2) SA 351 (SE), the court confirmed that cohabitation alone does not equate to financial independence, and maintenance obligations should remain unless the new partner explicitly assumes financial responsibility. Similarly, in SP v HP 2009 (5) SA 223 (O), the court emphasised that the presence of a third party does not automatically absolve a legally responsible spouse of their maintenance obligations.
The KLW judgment appears to have given significant weight to cohabitation as a decisive factor, without conducting a sufficiently detailed financial assessment of whether the applicant’s actual needs had changed. A more comprehensive financial inquiry—examining her income, expenses, financial contributions of the new partner (if any), and the respondent’s ability to pay—would have provided a more complete picture before determining whether maintenance should be adjusted.
Another issue concerns the evidentiary burden in maintenance reduction applications. In SN v SR (2023036122) [2023] ZAGPJHC 1335, the court held that a party seeking to reduce maintenance bears the onus of proving that either their financial situation has deteriorated or the recipient’s needs have diminished. In KLW, the respondent was not required to present comprehensive financial disclosures to justify the maintenance reduction. Instead, the judgment appears to have relied on an assumption that cohabitation inherently alleviated financial need, which departed from established legal principles.
A more balanced approach would have required the court to assess the applicant’s actual financial needs and obligations, the respondent’s ability to pay, and whether the new partner had legally or practically assumed financial responsibility. By not fully engaging with these elements, the KLW judgment leaves questions about the proper approach to maintenance variations under Rule 43(6).
Cohabitation and Public Policy Considerations
The treatment of cohabitation as an automatic ground for maintenance reduction raises broader public policy considerations. While courts must take all relevant factors into account when determining maintenance, they must also ensure that legal principles remain aligned with constitutional values and evolving societal norms.
In Drummond v Drummond 1979 (1) SA 161 (A), the court cautioned against presuming financial interdependence simply because a former spouse has entered a new relationship. More recently, in SP v HP, the court reaffirmed that maintenance obligations must be based on a financial inquiry, not moralistic assumptions about cohabitation. The KLW ruling, by assuming a causal link between cohabitation and reduced financial need without requiring concrete proof, risks reinforcing outdated perceptions of financial dependence.
A more balanced public policy approach would require courts to:
Differentiate between personal cohabitation choices and financial interdependence.
Require clear evidence that a new partner has fully assumed financial responsibility.
Recognise that a former spouse’s duty of support does not automatically cease upon cohabitation.
By not explicitly addressing these considerations, the KLW judgment leaves room for uncertainty in future maintenance disputes involving cohabitation.
The Best Interests of the Children and Maintenance Adjustments
A particularly significant concern in KLW is whether the reduction in maintenance adequately considered the best interests of the minor children.
Section 28(2) of the Constitution of the Republic of South Africa, 1996, affirms that a child’s best interests are of paramount importance in every matter concerning them. Courts have repeatedly confirmed that financial obligations towards children cannot be reduced arbitrarily without assessing the impact on their welfare.
In A.F v M.F (6664/19) [2019] ZAWCHC 111, the court held that a parent’s duty to maintain their child cannot be transferred to a third party unless a clear legal agreement exists.
In KLW, the judgment does not explicitly address whether the maintenance reduction negatively affected the children’s financial well-being. The assumption that the applicant’s new partner might be contributing to the children’s expenses lacks clear evidentiary support. A more thorough judicial inquiry—assessing the children’s financial needs, educational expenses, and standard of living—would have ensured that their best interests were central to the determination of maintenance obligations.
A More Constructive Approach to Maintenance Disputes
The KLW judgment also missed an opportunity to promote mediation as a means of resolving maintenance disputes amicably. In SN v SR, the court recognised the importance of alternative dispute resolution (ADR) in preventing unnecessary litigation and promoting fair financial settlements. Encouraging mediation before adjudication could have provided both parties with a more flexible and equitable resolution, avoiding an adversarial legal process.
By incorporating mediation as a preferred first step, courts can ensure that maintenance disputes are resolved in a way that minimises legal costs and emotional strain while prioritising financial fairness. The KLW judgment could have served as a model for integrating mediation into Rule 43(6) proceedings, thereby encouraging less contentious, more collaborative financial arrangements.
Conclusion
The KLW judgment highlights the ongoing challenges in adjudicating Rule 43(6) applications, particularly in cases where cohabitation is raised as a factor. While the court had to balance competing financial interests, the judgment raises concerns about the evidentiary burden in maintenance variations, the assessment of financial dependency, and the best interests of minor children.
A more comprehensive financial inquiry, a clearer legal test for cohabitation, and a stronger emphasis on mediation would have strengthened the legal reasoning and fairness of the outcome. Moving forward, future courts will need to clarify these issues to ensure consistency, fairness, and the protection of financially vulnerable spouses and children in maintenance disputes.
Questions and Answers
What is the central legal issue in KLW v CSW (202035177) [2025] ZAGPJHC 41?
The primary legal issue in this case concerns the interpretation and application of Rule 43(6) of the Uniform Rules of Court, specifically whether the applicant demonstrated a material change in circumstances warranting an increase in interim maintenance. The court’s refusal to grant the variation was largely based on the applicant’s cohabitation with a new partner, raising concerns about judicial discretion and evidentiary standards in maintenance variation applications.
What is the purpose of Rule 43(6) of the Uniform Rules of Court?
Rule 43(6) provides a mechanism for parties in matrimonial disputes to apply for a variation of interim maintenance orders where there has been a material change in circumstances. This rule is designed to ensure that maintenance orders remain fair and reflect the financial realities of the parties while divorce proceedings are still pending.
How did the court in KLW v CSW interpret the concept of ‘material change in circumstances’?
The court failed to apply a fact-based inquiry into the applicant’s financial circumstances and instead relied on the assumption that her cohabitation with another person automatically altered her financial position. This approach contradicts established precedent, which requires the applicant’s financial need to be assessed independently of her living arrangements unless clear evidence demonstrates that the new partner has assumed full financial responsibility.
What evidentiary burden does a party bear in a Rule 43(6) variation application?
A party seeking to increase maintenance must prove that their financial circumstances have worsened to the extent that the existing order is no longer adequate. A party seeking to reduce maintenance must demonstrate that their financial position has deteriorated significantly or that the recipient’s financial need has decreased. The court in KLW did not properly scrutinise whether the respondent had met this burden before allowing a reduction in maintenance.
What role does financial disclosure play in maintenance variation applications?
Financial disclosure is crucial in assessing whether a material change in circumstances has occurred. Courts require both parties to present comprehensive financial statements that justify an increase or decrease in maintenance. In this case, the court permitted a reduction in maintenance without requiring the respondent to provide substantial financial disclosure, undermining the principle that maintenance obligations should be adjusted based on verifiable financial evidence.
Did the court properly assess the applicant’s financial needs in determining the variation application?
The court’s reasoning primarily focused on the applicant’s cohabitation rather than her actual financial needs. It failed to conduct a thorough assessment of whether she continued to require maintenance at the same level. By assuming that cohabitation automatically equated to financial support, the judgment overlooked the need for a proper financial inquiry.
Does South African law recognise cohabitation as a ground for reducing maintenance?
Cohabitation alone does not automatically justify a reduction in maintenance. In Carstens v Carstens 1985 (2) SA 351 (SE), the court held that maintenance should be assessed based on financial need rather than living arrangements. Unless there is clear evidence that the new partner has taken over the applicant’s financial responsibilities, the duty of support remains with the former spouse. The court in KLW failed to apply this principle correctly.
How does KLW v CSW depart from previous case law on maintenance variations?
The judgment contradicts the approach taken in SN v SR (2023036122) [2023] ZAGPJHC 1335, where the court held that a party seeking to reduce maintenance must provide financial evidence of an inability to continue payments at the existing level. It also deviates from Taute v Taute 1974 (2) SA 675 (E), where the court confirmed that maintenance should be assessed based on the standard of living established during the marriage. In KLW, the court disregarded these principles and relied on assumptions rather than financial analysis.
What impact does the judgment have on financially dependent spouses seeking maintenance?
The ruling places an unfair burden on financially dependent spouses, forcing them to prove that their cohabitation does not affect their financial need rather than requiring the respondent to provide evidence that it does. This approach risks disadvantaging many spouses—often women—who may rely on maintenance to sustain themselves and their children post-separation.
How should courts approach the question of cohabitation in maintenance cases?
Courts should adopt a fact-based, financial inquiry rather than making blanket assumptions. In Drummond v Drummond 1979 (1) SA 161 (A), the court recognised that cohabitation does not necessarily imply financial dependence. The correct approach would be to determine whether the new partner has legally or practically assumed financial responsibility, rather than presuming that financial need has automatically decreased.
Did the court in KLW properly consider the temporary nature of Rule 43 orders?
Rule 43 orders are intended to provide temporary relief pending the finalisation of divorce proceedings. Courts have repeatedly warned against treating Rule 43(6) variations as final determinations of financial obligations. In A.F v M.F (6664/19) [2019] ZAWCHC 111, the court reaffirmed that such orders should remain provisional. The KLW ruling failed to reinforce this principle, effectively treating the variation as a final determination of maintenance obligations.
What role should mediation play in maintenance disputes?
Mediation offers an opportunity for parties to reach a fair and mutually acceptable resolution without resorting to adversarial litigation. In SN v SR, the court recognised the importance of alternative dispute resolution (ADR) in minimising conflict and legal costs. The KLW judgment did not encourage mediation, missing an opportunity to reduce litigation costs and promote cooperative financial arrangements between former spouses.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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