Brief Summary

Divorce — Maintenance — Claim for maintenance post-divorce — Plaintiff and defendant agreed on irretrievable breakdown of marriage — Defendant claimed maintenance and resettlement allowance — Court to consider factors under section 7(2) of the Divorce Act 70 of 1979 — Discretion of court to determine maintenance based on parties' means, needs, and standard of living — Court awarded maintenance of R44 502 per month and R500 000 for household necessities, reflecting the need for the defendant to establish a new home.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was a divorce action in the North Gauteng High Court, Pretoria, in which the plaintiff (JFH van der Westhuizen) sought a decree of divorce and ancillary relief, and the defendant (AJ van der Westhuizen) counterclaimed for a decree of divorce and maintenance.

The parties were in agreement that the marriage had irretrievably broken down and that a divorce order should be granted. The dispute that remained for determination concerned only post-divorce maintenance: whether the plaintiff should be ordered to maintain the defendant, and if so, the quantum and form of the maintenance (including whether a lump sum should be ordered to assist the defendant to establish a new home).

Procedurally, the action was instituted on 27 November 2008. The defendant delivered a plea and counterclaim on 27 February 2009. The trial commenced in May 2010, was postponed sine die, and resumed in February and March 2011. A prior interlocutory dispute regarding a contribution to costs was resolved at a pre-trial conference on 6 May 2010, with the defendant withdrawing that application and the plaintiff paying R300 000 in accordance with the parties’ settlement.

The general subject-matter of the dispute was the proper application of section 7(2) of the Divorce Act 70 of 1979 to a long marriage concluded out of community of property with an ante-nuptial contract excluding accrual, where the plaintiff was extremely wealthy and the defendant had assets and income but claimed maintenance enabling her, as far as possible, to continue at the marital standard of living.

2. Material Facts

The parties married on 12 October 1991 out of community of property in terms of an ante-nuptial contract that excluded the accrual system and contained a clause providing that in the event of divorce the plaintiff would pay the defendant R10 000 per month for one year, provide an average sedan not older than one year, and provide accommodation for at least two months after divorce. Shortly before trial, and in settlement of the defendant’s costs-contribution application, the plaintiff paid the defendant R300 000 (a settlement amount linked to those ante-nuptial contract obligations) and the defendant agreed to vacate the common home by 31 July 2010.

It was undisputed that the plaintiff was a builder and property developer, that he had become extremely wealthy, and that he could afford the amounts originally claimed by the defendant (including R68 794 per month and a R3 million resettlement allowance). The plaintiff did not disclose full details of his financial affairs, but the court accepted on the evidence and admissions that he owned or controlled substantial assets (including large numbers of units in retirement villages and valuable properties) and derived significant income directly or indirectly from those assets.

It was also not materially disputed that the defendant, aged 56 at trial, was educated and experienced (including as a town planner and later in retirement-village management), and that she held substantial assets (valued at approximately R5.5 million excluding a life annuity capital value) and had multiple income streams. Those included a pension from her first marriage, an annuity, rental-related net income from three townhouses, dividends/interest, and remuneration and benefits derived from her involvement in Phambele Property and Management Services CC (a business engaged in management and sales activities relating to retirement villages). However, a central factual feature for the court was the precariousness of her continued income from Phambele because that business depended materially on contracts and commissions connected to retirement villages owned or controlled by the plaintiff.

The marital standard of living was a significant common-cause feature. The parties lived for many years in very large, luxurious homes in Waterkloof, Pretoria, with multiple domestic employees; they drove expensive vehicles; they travelled overseas annually (flying business class) and took regular holidays; they entertained and dined out frequently; and they “materially lacked for nothing”.

As to the breakdown of the marriage, the court relied on a series of events on 15 November 2008 and their aftermath. After a staff Christmas outing and a gathering at an employee’s home, the parties returned to their home where an argument ensued related to the defendant’s questions about Mrs De Beer. The plaintiff packed a bag and left, returned to the gathering, and later left with Mrs De Beer to a guesthouse where they spent the night together. The plaintiff did not return to the common home thereafter. The defendant attempted for about three months to repair the marriage, unsuccessfully. The court accepted that the plaintiff’s relationship with Mrs De Beer ended the marriage and treated the plaintiff’s conduct as relevant to the breakdown.

A further factual aspect was that in August 2009, at the AGM of Centurion retirement village, a decision was taken to end Phambele’s management contract as too expensive; the plaintiff, holding a majority vote, voted in favour and could have prevented the outcome. This resulted in Phambele losing a management fee of approximately R40 000 per month, reinforcing the court’s concern that the defendant’s income prospects were vulnerable to the plaintiff’s decisions.

The plaintiff did not testify, purportedly for health reasons, but no medical evidence was tendered to support the inability to testify. The court treated this failure as relevant when assessing disputed inferences regarding the plaintiff’s relationship with Mrs De Beer and the events surrounding the separation.

3. Legal Issues

The central legal questions were whether, in the absence of a section 7(1) agreement or order, the court should exercise its discretion under section 7(2) of the Divorce Act 70 of 1979 to order the plaintiff to pay maintenance to the defendant, and if so, what maintenance order would be just, having regard to the statutory factors.

The dispute concerned a mixture of the application of law to fact and an evaluative value judgment inherent in the section 7(2) discretion. While many baseline facts were undisputed (including the plaintiff’s wealth and the marital standard of living), the contested questions included the proper weight to be given to the defendant’s own means and earning capacity, whether she should be required to reconfigure her estate to generate more income, and how to quantify both (i) an initial amount for household necessities to establish a new home and (ii) ongoing monthly maintenance.

4. Court’s Reasoning

The court approached the matter through the framework of section 7(2), emphasising that it confers a wide discretion on the trial court and requires a maintenance order to be just in light of all relevant factors, including those listed in the statute and any additional factors the court considers pertinent. In addition, the court accepted that maintenance is not confined to equal monthly payments; it may include an initial amount to enable a spouse to acquire household necessaries to establish a new home.

In addressing the parties’ competing positions, the court identified their “diametrically opposed” points of departure. The defendant contended she was entitled, as far as possible, to the same standard of living enjoyed during the marriage and should not be required to rearrange her affairs to reduce or eliminate a maintenance claim. The plaintiff contended the defendant could maintain herself at that standard by reconfiguring her estate to generate increased income.

When analysing the statutory factors, the court placed substantial weight on the plaintiff’s means and the undisputed fact that money was effectively “no object” for him, in circumstances where he did not disclose full details of his estate but had admitted ability to pay very substantial maintenance. In contrast, while recognising that the defendant had assets and income, the court treated her future earning prospects as materially constrained by the nature of her business activities and, in particular, by their dependence on the plaintiff’s assets and influence.

A decisive element in the court’s evaluation of the defendant’s earning capacity was the risk that her income from Phambele could be undermined by the plaintiff. The court regarded it as significant that the plaintiff had already voted in a manner that caused Phambele to lose a major contract and that there was no guarantee he would not do the same in relation to remaining income sources. The court was unpersuaded by an “eleventh hour” tender intended to protect the defendant’s business interests, reasoning that if the plaintiff’s case truly depended on the defendant’s ability to sustain herself through those income streams, he should have addressed the risk earlier and in a concrete manner.

The court also considered the duration of the marriage (approximately 19 years), the parties’ ages, and the defendant’s contributions to family life and to the plaintiff’s business environment. It treated the defendant as having given the plaintiff many years of support in running the home, raising children (including effectively mothering the plaintiff’s sons), and contributing to various aspects of the plaintiff’s projects, including retirement-village management and the design and furnishing of the parties’ homes.

Regarding conduct relevant to the breakdown, the court rejected the plaintiff’s untested allegations against the defendant (which she denied in evidence). It accepted that the defendant regarded the marriage as stable and that there were no prior indications of impending divorce. The court drew an inference, on the probabilities, that the plaintiff was involved in a relationship with Mrs De Beer and that this relationship brought the marriage to an end. It reinforced this conclusion by relying on the plaintiff’s failure to testify, and in the absence of medical evidence justifying that failure, it drew the inference that he could not provide a credible innocent explanation for his conduct on 15 November 2008. The court characterised the plaintiff’s conduct in ending the relationship in that manner as “callous and cruel”, and treated this as part of the overall context for what was just under section 7(2).

On the effect of the ante-nuptial contract clause providing limited divorce-related benefits, the court declined to treat it as an important limiting consideration. The court reasoned that there was no explanation for the clause’s inclusion and it was not advanced as a complete defence; it did not consider that the clause was intended to define exhaustively the defendant’s maintenance entitlement.

Having determined that it was just to order maintenance enabling the defendant, as far as possible, to continue at the prior standard of living, the court turned to quantification in two parts.

First, it assessed the claim for a lump sum to purchase household necessaries for establishing a new home. The defendant reduced her claim after a tender that permitted her to remove identified items as her property. The court accepted that the remaining items were necessary and that the prices were reasonable for the quality to which the defendant was entitled, particularly in circumstances where the cross-examination on pricing was not supported by countervailing quotations. The court therefore allowed the reduced amount claimed.

Second, the court addressed monthly maintenance. It treated the defendant’s schedule of income and expenditure as a guideline and then adjusted the claimed expenses by excluding or reducing items it considered not justified for a single person or not properly claimable in the manner advanced. It reduced the accommodation figure to a reasonable monthly rental estimate; removed the cost of a handyman while retaining domestic and gardening assistance; reduced groceries; excluded PPS life insurance (while recognising disability cover was necessary) because life cover was not required as a precondition; excluded motor vehicle costs because those were already accounted for as a Phambele benefit; and reduced “unforeseen expenses”. It also corrected the income side by including income items omitted in the expert’s computation and by allowing for tax. On that basis, the court calculated a monthly shortfall and then, considering the uncertainties around the defendant’s continued income from Phambele and the parties’ standard of living, exercised its discretion to fix monthly maintenance at a round figure higher than the computed shortfall.

Finally, on costs, the court considered that the defendant had achieved substantial success, particularly against a plaintiff who maintained he should not pay maintenance while withholding testimony and full financial disclosure. It concluded that a costs order against the plaintiff, including the costs of senior counsel, was just.

5. Outcome and Relief

The court granted a decree of divorce.

The plaintiff was ordered to pay maintenance to the defendant comprising a once-off payment of R275 601 within 10 days to enable the defendant to purchase household necessaries for her new home, and ongoing maintenance of R35 000 per month payable from 1 May 2011, escalating annually on 1 May in accordance with the consumer price index as published in the Government Gazette (with the first escalation to be calculated on 1 May 2012, as stated in the order).

The plaintiff was ordered to pay the defendant’s costs of suit, including the costs of senior counsel, taking into account any amounts paid under any Rule 43 order.

Cases Cited

Beaumont v Beaumont 1987 (1) SA 967 (A)

Katz v Katz 1989 (3) SA 1 (A)

Swiegelaar v Swiegelaar 2001 (1) SA 1208 (SCA)

Buttner v Buttner 2006 (3) SA 23 (SCA)

Nilsson v Nilsson 1984 (2) SA 294 (C)

Rousalis v Rousalis 1980 (3) SA 446 (C)

Grasso v Grasso 1987 (1) SA 48 (C)

Pommerel v Pommerel 1990 (1) SA 998 (E)

Skilya Property Investments (Pty) Ltd v Lloyds of London 2002 (3) SA 765 (T)

Galante v Dickinson 1950 (2) SA 460 (A)

Legislation Cited

Divorce Act 70 of 1979, section 7(2)

Rules of Court Cited

Uniform Rule 43

Held

The court held that, applying section 7(2) of the Divorce Act 70 of 1979 and exercising the wide discretion it confers, it was just to order the plaintiff to pay maintenance to the defendant notwithstanding her assets and income, given the parties’ long marriage, the very high marital standard of living, the plaintiff’s substantial means, the defendant’s contributions during the marriage, and the precariousness of the defendant’s ongoing income stream due to its dependence on assets and decisions within the plaintiff’s control.

The court further held that the maintenance award could properly include a lump sum to enable the defendant to purchase household necessaries to establish a new home, and it accepted the defendant’s reduced claim for that amount as reasonable on the evidence presented.

In quantifying ongoing maintenance, the court held that certain claimed expenses should be reduced or excluded (including a handyman, inflated groceries for a single person, life insurance not shown to be necessary, and motor vehicle costs already covered as an employment benefit), and after evaluating income and tax implications and considering uncertainties regarding future income, the court fixed monthly maintenance at R35 000, with annual escalation linked to the consumer price index.

LEGAL PRINCIPLES

Section 7(2) of the Divorce Act 70 of 1979 confers a wide discretion on the trial court to make a maintenance order that is just, having regard to the listed factors (means, earning capacities, needs, obligations, age, duration of marriage, standard of living, relevant conduct, and any other relevant factor) and without any prescribed hierarchy or weighting among those factors.

A maintenance award under section 7(2) is not confined to periodic payments; the court may, where just, order an initial lump sum to enable a spouse to acquire household necessaries and establish a new home, in addition to or alongside monthly maintenance.

A spouse’s ability to maintain herself does not, in itself, preclude a maintenance award; the enquiry remains whether an award is just in all the circumstances, which may include maintaining, as far as possible, the standard of living enjoyed during the marriage.

Where a party fails to testify without adequate substantiation (such as medical evidence justifying non-attendance), the court may draw an adverse inference in appropriate circumstances when assessing probabilities on disputed issues of fact, particularly where that party was positioned to provide a credible explanation for material events.

Van Der Westhuizen v Van Der Westhuizen (55831/08) [2011] ZAGPPHC 30 (28 March 2011)