Abstract

In current South African matrimonial law, a dum casta clause may be inserted into a divorce agreement between the parties to provide that the duty to pay spousal maintenance after divorce will cease when the maintenance recipient (usually the wife) remarries, dies or lives together with another person in a relationship akin to marriage. This note examines the nature of dum casta clauses in agreements regarding post-divorce spousal maintenance, focusing on their purpose, background, context and constitutionality. We examine the clause through a constitutional lens and with reference to international law, the courts’ constitutional duty to develop the common law in line with the Bill of Rights, the Promotion of Equality and Prevention of Unfair Discrimination Act, and from a public policy perspective. We conclude that this clause, if strictly interpreted, violates the constitutional rights of the maintenance recipient and that such clauses should be declared contrary to public policy.