A couple was married out of community of property with the exclusion of the accrual system in 2013 with one minor child born in the marriage.
The wife, 44, is a “self-supporting businesswoman” who earns a substantial income from her rental properties. She is also the owner of no less than four properties exceeding a value of R6m. All the properties are paid up but for the one that she lives in with the minor child.
Her husband, 70, is a semi-retired orthopedic surgeon.
The wife instituted divorce proceedings and at the same time lodged an application for interim maintenance for herself and the minor child in April last year.
The minor child lives with the wife and spends every fortnight with the husband as well as one midweek overnight stay every Wednesday. The husband drops the minor child off at school on Thursday mornings.
The wife claimed maintenance for her and the minor child in the sum of R95,070 per month. She also asked the husband to make payments for monthly medical aid contribution for her and the minor child on a comprehensive medical aid scheme, all medical related expenses not covered, school fees, compulsory school expenses and all other related expenses and extra mural activities.
She also demanded a contribution towards her legal costs in the sum of R85,000 payable within five days of date of the court order.
In his response, the husband tendered to continue maintaining the minor child in the amount of R10,000 per month, pay for the minor child’s medical aid and extraordinary medical expenses and pay for the minor child’s school fees and educational expenses.
The parties standard of living:
The wife described their standard of living when together as follows:
- Regular trips overseas.
- Last three trips: two to Poland and one trip to Greece
- Local trips every three or so months. Eg To Cape Town and Knysna
- Always staying in 5-star hotels. Flying business class overseas.
- We both drive luxury cars, me a Land Rover Velar and my husband an Audi Q7. Eating out at top restaurants on all trips and eating out at top restaurants two to three times per week. Shopping at top brands line Louis Vuitton and Dolce & Gabbana.
- All grocery shopping has always been done at Woolworths
- On average R20,000 per month on grooming for myself such as nails, spas, botox, fillers, lasers, beauty products, etc.
The husband described their standard of living when they lived together as “above average standard of living of a middle income earning South African, which included regular overseas travel, visits to various restaurants and shops, grocery shopping at Food Lovers Market and Woolworths”.
The wife alleged that she makes about R140,000 per annum from her business as a breeder of French bull dogs and that the expenses could be as high as R100,000 per annum.
She further alleged that she earns an income from one of the rental properties in the amount of R10,000 per month, that her father lives in the other property and does not pay her any rental. This was, however, disputed by the husband.
The wife further alleged that due to the impact of Covid in the beginning of 2020 she did not draw a salary from the other business of which she is a sole director for many months and has only drawn a salary in March 2021 for R17,270.47 and in January 2022 for R24,510.14.
The court, however, found that this allegation was not only “a blatant untruth, it is deceptive and disingenuous to say the least”.
It was not disputed that the wife’s partner lives with her, however, she did not state what her partner’s contributions to the household expenses are and she did not make an apportionment for him. This, according to the court, was a material omission.
The husband stated in his reply that his income is R154,405.97 and set out his monthly expenses at R138,429.84.
In its determination, the court took into consideration the legal position concerning spousal maintenance.
The court reiterated that even where parties are married out of community of property (with or without accrual) and the duty of support that arose when they got married, Rule 43 proceedings permit the financially weaker spouse to approach the court directing the financially stronger spouse pay them maintenance pending the divorce proceedings and a contribution towards the costs of the divorce proceedings.
In an application for spousal maintenance, the applicant must demonstrate that the respondent owes her a duty of support, must establish the need to be maintained and that the respondent has adequate resources to discharge this duty. It was the court’s view that the wife had not established the need to be maintained.
The court further found that the wife had not made out a case for legal costs and therefore refused her request for contribution towards her legal costs.
The wife’s claim for spousal maintenance was dismissed.
Her husband was ordered to pay maintenance for the minor child in the sum of R10,000 pm.
In addition, pay the monthly premium for the minor child to remain as a dependent on his comprehensive medical aid scheme; pay all excess medical expenses incurred in respect of the minor child that are not covered by the medical aid scheme. Pay the minor child’s school fees, compulsory school expenses and all other school related expenses and extra-curricular activities.
• Hokwana is a legal practitioner who unpacks court judgments to provide you with insights on legal matters
Judge finds wife’s low income claim ‘deceptive and disingenuous’
TINA HOKWANA | Businesswoman fails to prove need for spousal maintenance
A couple was married out of community of property with the exclusion of the accrual system in 2013 with one minor child born in the marriage.
The wife, 44, is a “self-supporting businesswoman” who earns a substantial income from her rental properties. She is also the owner of no less than four properties exceeding a value of R6m. All the properties are paid up but for the one that she lives in with the minor child.
Her husband, 70, is a semi-retired orthopedic surgeon.
The wife instituted divorce proceedings and at the same time lodged an application for interim maintenance for herself and the minor child in April last year.
The minor child lives with the wife and spends every fortnight with the husband as well as one midweek overnight stay every Wednesday. The husband drops the minor child off at school on Thursday mornings.
The wife claimed maintenance for her and the minor child in the sum of R95,070 per month. She also asked the husband to make payments for monthly medical aid contribution for her and the minor child on a comprehensive medical aid scheme, all medical related expenses not covered, school fees, compulsory school expenses and all other related expenses and extra mural activities.
She also demanded a contribution towards her legal costs in the sum of R85,000 payable within five days of date of the court order.
In his response, the husband tendered to continue maintaining the minor child in the amount of R10,000 per month, pay for the minor child’s medical aid and extraordinary medical expenses and pay for the minor child’s school fees and educational expenses.
The parties standard of living:
The wife described their standard of living when together as follows:
The husband described their standard of living when they lived together as “above average standard of living of a middle income earning South African, which included regular overseas travel, visits to various restaurants and shops, grocery shopping at Food Lovers Market and Woolworths”.
The wife alleged that she makes about R140,000 per annum from her business as a breeder of French bull dogs and that the expenses could be as high as R100,000 per annum.
She further alleged that she earns an income from one of the rental properties in the amount of R10,000 per month, that her father lives in the other property and does not pay her any rental. This was, however, disputed by the husband.
The wife further alleged that due to the impact of Covid in the beginning of 2020 she did not draw a salary from the other business of which she is a sole director for many months and has only drawn a salary in March 2021 for R17,270.47 and in January 2022 for R24,510.14.
The court, however, found that this allegation was not only “a blatant untruth, it is deceptive and disingenuous to say the least”.
It was not disputed that the wife’s partner lives with her, however, she did not state what her partner’s contributions to the household expenses are and she did not make an apportionment for him. This, according to the court, was a material omission.
The husband stated in his reply that his income is R154,405.97 and set out his monthly expenses at R138,429.84.
In its determination, the court took into consideration the legal position concerning spousal maintenance.
The court reiterated that even where parties are married out of community of property (with or without accrual) and the duty of support that arose when they got married, Rule 43 proceedings permit the financially weaker spouse to approach the court directing the financially stronger spouse pay them maintenance pending the divorce proceedings and a contribution towards the costs of the divorce proceedings.
In an application for spousal maintenance, the applicant must demonstrate that the respondent owes her a duty of support, must establish the need to be maintained and that the respondent has adequate resources to discharge this duty. It was the court’s view that the wife had not established the need to be maintained.
The court further found that the wife had not made out a case for legal costs and therefore refused her request for contribution towards her legal costs.
The wife’s claim for spousal maintenance was dismissed.
Her husband was ordered to pay maintenance for the minor child in the sum of R10,000 pm.
In addition, pay the monthly premium for the minor child to remain as a dependent on his comprehensive medical aid scheme; pay all excess medical expenses incurred in respect of the minor child that are not covered by the medical aid scheme. Pay the minor child’s school fees, compulsory school expenses and all other school related expenses and extra-curricular activities.
• Hokwana is a legal practitioner who unpacks court judgments to provide you with insights on legal matters
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