Brief Summary

Maintenance — Interim relief in matrimonial matters — Application for increased maintenance and contribution towards legal costs — Applicant and respondent married in community of property, with marriage having irretrievably broken down — Applicant seeks increased maintenance due to insufficient existing order and lack of financial disclosure by respondent — Respondent disputes amount sought, offering lesser sum based on his financial circumstances — Court grants order for increased maintenance and contributions as requested by applicant, finding her claims reasonable and necessary for her support pending finalization of divorce proceedings.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was an application for interim relief in a matrimonial dispute brought in terms of Uniform Rule 43. The applicant (the wife) sought interim maintenance and related relief pending the finalisation of divorce proceedings, as well as a contribution towards her legal costs. The respondent (the husband) opposed portions of the relief sought, while indicating that he did not object to certain items.

The parties are spouses married to each other in community of property. They married on 30 December 1980, and all children born of the marriage are majors. The marriage relationship had broken down irretrievably, and the parties had been separated since 2009.

The procedural history relevant to the application included a prior Rule 43 order granted in the South Gauteng High Court, Johannesburg, on 12 September 2012, in terms of which the respondent was ordered to pay R5 300 per month as maintenance and R10 000 as a contribution towards the applicant’s legal costs. Divorce proceedings were later instituted by the applicant in the KwaZulu-Natal Division, Durban, during December 2020, with the respondent filing a plea and counterclaim. The division of the joint estate remained in dispute, and the applicant anticipated that the divorce trial would not be finalised expeditiously.

The general subject-matter of the dispute concerned whether, and to what extent, the applicant was entitled pending the divorce to increased maintenance pendente lite, the provision of certain assets and payments said to be necessary for her day-to-day living (including a vehicle, household appliances, and repairs), and a contribution to legal costs, having regard to the parties’ marital regime, lifestyle, and the respondent’s disclosure of financial information.

2. Material Facts

It was common cause that the parties were married in community of property and had been separated for many years, with the marriage having broken down irretrievably. It was also not in dispute that there was an existing Rule 43 maintenance order made in 2012, fixing interim maintenance at R5 300 per month and making provision for a once-off contribution to the applicant’s legal costs in the amount of R10 000.

The applicant relied on the fact that the 2012 maintenance amount had become insufficient over time. She contended that her living expenses had increased materially since the 2012 order and that the respondent had not increased maintenance despite requests. The applicant also asserted that she had been without transport since June 2019, and that the unit she occupied at Bentley Estate, Ballito required substantial maintenance and repair.

It was also relied upon that, aside from the unit she occupied, the applicant contended she had no access to resources or assets and remained dependent on the respondent for maintenance and payment of certain expenses. She alleged that the respondent controlled the financial resources and assets of the joint estate to her exclusion, notwithstanding the community of property regime.

A key factual aspect was the applicant’s contention that the respondent had failed or refused to make full and frank disclosure of his financial circumstances, including in relation to certain identified properties and accounts (including references to Sheffield Manor, the Verulam family farm, the proceeds of sale of the former matrimonial home “Sea View,” and various other accounts and interests). The respondent’s position included that he could not recall with precision the historic use of certain proceeds (including from the Sea View property and pension pay-outs), and that he could not secure certain overseas bank statements, stating further that he did not wish to burden the court with voluminous documents.

The respondent accepted certain relief sought, namely that he had no objection to the applicant receiving payment of specified Bentley Estate-related expenses (rates, levies, utilities, and related charges) and that the applicant be retained as his spousal dependant on his medical aid plan. The remaining requests were disputed, including the increase of monthly maintenance to R25 000, the acquisition of a new vehicle, a payment for damp-proofing and repairs, payments for specified household appliances, a payment for a laptop, and a contribution of R50 000 towards legal costs.

In relation to the vehicle request, the applicant relied on the suitability and cost-effectiveness of the model proposed (including warranty and service plan considerations), and the respondent’s access to more than one vehicle was noted in the judgment. The respondent did not, on the court’s account, advance a definitive case that the items requested were unnecessary, but rather contended that such relief fell outside Rule 43 because it involved acquisition of capital assets.

3. Legal Issues

The central legal questions the court was required to determine were whether the applicant had established entitlement, under Uniform Rule 43, to the interim relief sought pending divorce, including whether interim maintenance could encompass (in addition to monthly payments) relief relating to the provision or acquisition of assets necessary for daily living, such as a motor vehicle, household appliances, and a laptop, and whether the applicant was entitled to the sought contribution towards legal costs.

A further issue concerned the court’s assessment of the reasonableness of the applicant’s claimed needs and whether the relief sought was consistent with maintenance pendente lite measured against the marital standard of living and the parties’ respective positions, particularly given their marriage in community of property.

The dispute involved a combination of application of law to fact and evaluative judgment. While there were factual disputes relating to disclosure and the respondent’s financial circumstances, the court’s decision turned substantially on the evaluative assessment of what constituted reasonable interim maintenance and reasonable ancillary relief, as well as the legal characterisation of such relief as falling within the ambit of Rule 43.

4. Court’s Reasoning

The court approached the matter against the established principle that Rule 43 proceedings require utmost good faith and full disclosure of material financial information by both parties. In this context, the court referred to authority emphasising the difficulties posed when a party controlling financial resources fails to disclose properly or engages in delay and obfuscation. The court considered the respondent’s disclosure inadequate and concluded that he had failed to fully disclose his financial circumstances.

In assessing maintenance pendente lite, the court reasoned from the parties’ marital regime. Because the parties were married in community of property, the court held there was no reason for the applicant to endure a lifestyle inferior to that of the respondent. The court accepted that the applicant was entitled to enjoy a lifestyle consistent with the marital standard and to live, pending the divorce, out of the assets of the joint estate which the respondent controlled.

The court considered the applicant’s need for increased monthly maintenance. It accepted as a matter of ordinary inference that a maintenance figure fixed in 2012 would not reflect current costs and circumstances, and that the applicant’s present expenses would reasonably be higher than they were at that time. The court examined the nature of the expenses described (including groceries, toiletries, mobile contract, clothing, personal care, insurance, fuel, travel, gym membership, TV licence, and entertainment) and characterised them as appearing to be reasonable and necessary expenses.

A significant aspect of the reasoning concerned the respondent’s contention that Rule 43 did not permit the relief sought insofar as it required acquisition of capital items or once-off payments. The court rejected the argument that such relief necessarily fell outside Rule 43. It accepted that, while courts commonly order periodic payments, they may also order that other assets be made available for use by an applicant. The court further reasoned that the applicant’s entitlement to reasonable maintenance pendente lite, assessed according to the marital standard, could include safe and reliable transportation and ordinary household necessities, particularly where the respondent controlled the joint estate resources and the applicant lacked practical access to them.

In addressing the respondent’s reliance on authority suggesting that Rule 43 does not empower a court to award lump sums, the court acknowledged the point but considered that the purpose of Rule 43 is to provide interim maintenance and support. The court noted that Rule 43(1)(b) expressly accommodates a lump sum contribution to legal costs, and reasoned that a similar approach could apply to the acquisition of necessary household appliances and the delivery of a motor vehicle, given their role in enabling day-to-day living pending the divorce.

The court evaluated the items sought by the applicant and considered them not to be luxurious. It noted that the respondent did not dispute that certain household appliances were over 30 years old, and accepted that it could not reasonably be expected that such appliances would remain in good condition. The court similarly accepted the applicant’s motivation for the particular vehicle model sought and rejected criticisms of the vehicle choice as rendering the request unreasonable, especially in light of the respondent’s access to multiple vehicles.

On the contribution to legal costs, the court reasoned that the applicant was entitled to litigate on a scale commensurate with the respondent’s representation, noting that the respondent was able to secure the services of an attorney and counsel. The court accepted that the applicant ought to be enabled to do likewise through an appropriate interim contribution to costs.

Ultimately, the court concluded that, given the respondent’s inadequate disclosure and the nature of the applicant’s needs in the circumstances of a community of property marriage and a long-delayed finalisation of divorce, the relief sought was reasonable.

5. Outcome and Relief

The court granted the application substantially in the terms sought, making an order that the respondent pay R25 000 per month as maintenance to the applicant, payable from the first day of the month following the order and monthly thereafter.

The court further ordered the respondent to pay specified Bentley Estate-related expenses directly to suppliers (municipal rates and refuse, levies including CSOS and special levies, electricity, water consumption, and basic water and sewage charges), and ordered that the respondent retain the applicant as a spousal dependant on his Discovery Coastal Saver Medical Aid Plan.

In addition, the court ordered the respondent to purchase a new Suzuki Brezza motor vehicle to be registered in the applicant’s name and to pay the quoted costs for damp-proofing, re-plastering, and repainting. The court also ordered payments for specified household appliances and a laptop, directing payment into the applicant’s account for certain items and direct payment to the contractor for repairs.

The court granted a contribution to legal costs in the amount of R50 000, payable into the applicant’s attorneys’ trust account within the specified period.

As to costs, the court ordered that the costs of the application would be costs in the cause.

Cases Cited

Du Preez v Du Preez 2009 (6) SA 28 (T).

B v B (700/2013) [2014] ZASCA 137 (25 September 2014).

Van der Spuy v Van der Spuy 1981 (3) SA 638 (C).

Greenspan v Greenspan 2000 (2) SA 283 (C).

Senior v Senior 1999 (4) SA 955 (W).

Legislation Cited

No legislation was cited in the judgment apart from the reference to the Uniform Rules of Court governing interim relief in matrimonial matters.

Rules of Court Cited

Uniform Rules of Court, Rule 43.

Held

The court held that the applicant was entitled to reasonable maintenance pendente lite assessed with reference to the parties’ marital standard of living and the fact that they were married in community of property, and that there was no basis for the applicant to endure a lifestyle inferior to the respondent’s while the respondent controlled the joint estate resources.

The court held further that Rule 43 relief was not confined only to periodic cash payments in circumstances where the applicant demonstrated the need for practical necessities (including safe and reliable transport and replacement of old household appliances), and that, in appropriate circumstances, the court could order provision or acquisition of items necessary for the applicant’s day-to-day life pending divorce.

The court found that the respondent had failed to make full disclosure of his financial circumstances and accepted that the relief sought by the applicant, including the contribution towards legal costs, was reasonable. The relief was granted, with costs ordered to be costs in the cause.

LEGAL PRINCIPLES

The judgment applied the principle that Rule 43 proceedings require utmost good faith and full and frank disclosure of all material financial information, particularly where one spouse controls the relevant financial resources.

It applied the principle that maintenance pendente lite is determined with reference to the marital standard of living and what is reasonable in the circumstances, and that, in a marriage in community of property, an applicant spouse should not be compelled to live at a standard materially inferior to the respondent spouse pending divorce where the respondent controls the joint estate’s resources.

The judgment applied the principle that Rule 43 relief, while commonly framed as periodic payments, may include orders making assets available for use and may, in appropriate circumstances, include once-off payments connected to necessary maintenance and functionality of daily life, alongside the more conventional lump sum contribution towards legal costs.

It further applied the principle that an applicant spouse is entitled to a contribution to legal costs sufficient to enable litigation on a scale reasonably commensurate with that adopted by the other spouse, so as to promote fairness pending final determination of the divorce action.

V.G v D.G (D9175/2020) [2022] ZAKZDHC 37 (20 September 2022)