The so-called dum casta clause is a paragraph (in a divorce settlement agreement) which stipulates that the spousal maintenance obligation will cease (stop) when the other party remarries or lives together as husband and wife with another person. Similar restrictive conditions may be added if both parties can agree on this.
When provision is being made for spousal maintenance in a divorce settlement agreement, it is highly recommended to add the dum casta clause.
An Example Clause:
“In the event of Mrs A forming a relationship and/or co-habiting with another adult for a period in excess of six months and/or remarries during the course of Mr A’s period of liability to maintain her, Mr A’s liability to maintain Mrs A shall cease.”
No dum casta clause?
In absence of the dum casta clause, the spousal maintenance order will continue even if the receiver of the maintenance remarries or lives together as husband or wife with another person. It might even be possible for a woman to be maintained by two men – her ex-husband and her new husband. One may argue that this goes against public policy. Attempts to remedy this situation after divorce will be difficult, time-consuming and even expensive.
Prevention is better than cure. Make sure your divorce attorney adds the dum casta clause to your settlement agreement – especially if you are the person who will be paying the spousal maintenance to your future ex-spouse.
Need more information?
Nazli Williams (BCom LLB), the director of Patton Williams Attorneys, is an admitted attorney of the High Court of South Africa, specializing in Divorce and Family Law matters. Her fields of expertise and interest include Divorce Law, Family Law, Domestic Violence Law and International Divorce Law. Her vision is to demystify Family Law processes, helping good people in plain language and with great technology, to achieve remarkable results.