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The Allocation of Maintenance in Divorce Proceedings

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The Allocation of Maintenance in Divorce Proceedings

Child maintenance

The Allocation of Maintenance in Divorce Proceedings

We Look at the L.E.A V A.J.A (990/2024) [2024] Zanwhc 14 Case, In Which Judgment Was Given on June 21st, 2024.

In this case the Applicant brought a Rule 43 Application, which the Respondent opposed.

This specific Application applies to High Court procedures for interim relief during divorce proceedings.

The Facts of This Case Are The Following:

The Applicant, in this matter, had been seeking maintenance from the Respondent for herself as well as their four Minor Children- two of whom the parties had adopted when the Applicant’s sister had passed away.

The Applicant also wanted the children’s primary residence to be with her in terms of section 18(2) of the Children’s Act 38 of 2005.

Therefore, an application in terms of Rule 43 was brought before the Court.

The Rule 43 application allows a spouse (usually the Applicant) to seek interim relief from the court while the divorce proceedings are ongoing. This is particularly important when urgent matters need to be addressed before the divorce is finalised.

The Respondent opposed this application, but the primary residence, care and contact of the Minor Children have become settled between the parties, including the Respondent’s contact with the Minor Children on their birthdays.

What remains in dispute is the amount of maintenance to be paid by the Respondent and his contribution to the Applicant’s litigation costs.

The Applicant had requested R68,430.00 per monthly maintenance for herself and the Minor Children.

In response, the Respondent had proposed to provide R33,980.00 per month to cover various maintenance expenses for the Applicant and the Minor Children.

The Respondent also made an offer to maintain coverage for the Minor Children under his medical aid plan.

In addition to the above maintenance claims, the Applicant also sought relief concerning the Minor Children’s school fees, claiming they were overdue. The Respondent, however, again contested the assertion.

Even though there was a disagreement regarding the school fees, there was a mutual understanding in place that the Respondent would be responsible for the educational needs of the Minor Children.

From the sworn statement and the Financial Disclosure Form that the Applicant supplied, it is clear that the children’s maintenance requirements amounted to R69 749.52, with a further R 40 683,78 for the Applicant’s maintenance.

A big part that was played here, was the standard of living that the parties had before they started the divorce proceedings.

Due to the fact that all the parties were used to having this set standard of living, it cannot just be ignored.

The Applicant avers that it is within the Respondent’s ability to pay R68 430.00 per month for her maintenance and the Minor Children because that is what they are used to and what she considers reasonable.

The parties did lead an exorbitant life with not only one, bit three domestic workers, an au pair and two gardeners employed by the parties.

Although the Applicant did earn her own salary, it was not sufficient to sustain the children and her expensive lifestyle alone. She also stated that her salary would decrease, which emphasised the fact that she would not be able to wholly support the children and herself.

In response of this disclosure, the Respondent argued that the Applicant was asking for an exorbitant amount of money, and that she was portraying a false picture where the Respondent had unlimited funds available.

He further argued that an amount of R54 000.00 per month is fair and reasonable for the Applicant and the Minor Children, excluding the costs of medical aid, which he offers to cover.

Legal Issue when considering Maintenance in Divorce Proceedings

The Judge stated that from the papers that were submitted to the Court the primary residence and contact of the Minor Children were not strongly contended and that it was not an issue regarding the facts of the case.

The main issue before the Court is to determine the reasonable and appropriate amount of maintenance to be paid by the Respondent to the Applicant and the Minor Children, considering their accustomed lifestyle and the financial capacities of both parties.

Another important factor here was assessing the Respondent’s obligation to contribute towards the Applicant’s legal costs for the divorce proceedings.

An established principle in our law, as set out by our Constitution, is the concept of a contribution towards the costs of a divorce action emanating from the duty of support that spouses owe each other.

This accords with the right to equality in terms of the Constitution, in that the divorcing spouse with no source of income (usually the wife) is entitled to contribute towards her legal costs to ensure she has an equal opportunity to defend and present her case.

The Applicant claimed that her financial position is far below that of the Respondent, so she should be entitled to a contribution towards the costs of the divorce.

She anticipated that various legal experts would have to be called upon in order to draw the divorce proceedings to a close and felt that it would not be reasonable to her to pay a large amount in legal costs.

In this regard, she obtained a pro forma invoice from her legal representative, projecting the fees for the divorce action at R221 934.58.

She contended that a cost contribution of R100 000.00 would be reasonable, considering the parties’ respective income.

When considering such Applications, the Court will assess the financial circumstances of both parties, the complexity of the case, and the reasonableness of the requested contribution. It aims to balance the need for fairness and equity between the spouses while ensuring that legal costs do not disproportionately burden either party.

Relevance 

The case outlines the importance of maintenance when Minor Children are involved as set out by the rules and regulations of the Children’s Act.

This case highlights the complexities in determining maintenance and custody arrangements during divorce proceedings, especially when parties have enjoyed a high standard of living. It underscores the court’s role in balancing the financial capabilities of both parties while ensuring adequate support for the Applicant and children.

Analysis of Maintenance in Divorce Proceedings

The court extensively reviewed the financial disclosures and arguments presented by both parties. It noted the Applicant’s claim for R68,430 per month for maintenance, while the Respondent contested this amount as exorbitant and not adequately supported by evidence.

The Applicant’s assertions regarding her and the children’s maintenance needs were detailed, including expenses for housing, domestic staff, education, and medical care. Financial statements and other documentary evidence supported these claims.

Conversely, the Respondent argued for a significantly lower maintenance amount, disputing certain expenses claimed by the Applicant and emphasising his financial limitations, primarily based on his salary and assets.

The court scrutinised both parties’ contentions, emphasising the standard of living during the marriage and the Minor Children’s needs. It noted discrepancies in the rental costs claimed by the Applicant and adjusted certain other expenses deemed excessive or inadequate substantiated.

The court balanced the figures provided by both parties against the Applicant’s demonstrated needs and the Respondent’s financial capacity.

Conclusion

Ultimately, the court ordered the Respondent to pay R45,510 per month to maintain the Applicant and the Minor Children, excluding school fees and medical aid contributions.

This decision was based on the Applicant’s demonstrated financial needs and the Respondent’s financial capacity, ensuring that interim relief was fair and reasonable under the circumstances

The Respondent also had to contribute to the Applicant’s legal fees in the amount of R100,00.00.

Cary v Cary was an important Judgement as the court concluded that the Applicant was entitled to a contribution towards the costs, which would ensure equality of arms in the divorce action against her husband. The court held:

“…Applicant will not enjoy equal protection unless she is equally empowered with ‘the sinews of war’…”. It further went on to say that it would be unjust for a wife to ask her husband’s financial assistance to divorce him, and it would take away her human right of dignity as entrenched in our Constitution.

The judgment of this case highlights how important it is to correctly and adequately substantiate the documentation you intend to provide before the Court.

This case highlights the judiciary’s role in balancing divorcing parties’ financial responsibilities while ensuring adequate support for dependents. It underscores the importance of interim relief mechanisms like Rule 43 Applications in addressing urgent financial needs during divorce proceedings.

In conclusion, this case illustrates the court’s commitment to equitable outcomes in divorce cases through careful consideration of financial circumstances and needs.

References:

Children’s Act 38 of 2005.

Constitution of the Republic of South Africa, 1996.

Cary v Cary 1999 (3) SA 615 (C); [1999]2 All SA 71 (C).

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