Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance

Author: Elsje Bonthuys

ISSN: 1996-2193
Affiliations: BA LLB LLM (Stell) PhD (Cantab), Professor of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 31 Issue 3, 2020, p. 377 – 397


Although the reciprocal duty of support between spouses is an invariable common-law consequence of marriage, spouses may extend the duty of support beyond the marriage by way of contract. Courts have also recognised contractual rights to support between unmarried intimate partners and spouses in Muslim marriages. All contracts, including those between family members, must be legal and public policy plays a role in determining the legality of contracts for spousal and partner support. This article evaluates changes in public policy about spousal maintenance, comparing agreements which establish a duty of support outside of the common law, agreements which extend the duty of support after the end of the spousal relationship through death or separation, and agreements which waive, vary or otherwise limit duties of spousal support. The article identifies certain shifts in public policy governing spousal maintenance but argues that the jurisprudence is characterised by inconsistency and contradictions, particularly in the extent to which it embodies the protection of fundamental rights and the advancement of gender equality. By way of contrast with the cases extending contractual duties of support to Muslim marriages and unmarried intimate relationships which strongly emphasise equality and non-discrimination, cases dealing with contracts regulating post-divorce maintenance restate pre-constitutional precedents based on formalistic and positivist reasoning. Another discrepancy arises between cases extending the duty of support after the death of the maintenance debtor and cases extending the duty of support after divorce or separation. The article proposes a clear evaluation of public policy in relation to these contracts, which balances the interests of contractual autonomy with the interests of fairness and equality.