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TINA HOKWANA | Court considers strain caused by protracted divorce when awarding order

Couple advised take note of their changed circumstances when planning ahead

Tina Hokwana Legal Practitioner
Children are also affected when their parents divorce
Children are also affected when their parents divorce
Image: 123RF

Judge highlights the impact that dragged-out divorce proceedings have on parties’ financial wellbeing.

The parties are now embroiled in divorce proceedings and are married out of community of property with accrual.

Their minor daughter suffers from developmental challenges, and their son is a university student. The wife applied for maintenance and a R100,000 contribution towards her legal costs, pending the divorce proceedings.

She was unemployed since 2003, but since started working as an intern sales associate and will soon qualify as an estate agent. Her current income is less than R5,000 per month.

In determination, Judge Elmarie van der Schyff considered the hard economic times middle-class South Africans are experiencing and emphasised the impact that the dragged-out divorce proceedings have on parties’ financial wellbeing.

The husband is employed and due to a possible conflict of interest with his employers, he sold his interest in a company. The family of four relies on his monthly income of R57,000. After paying his monthly expenses a, he is left with about R26,300.

The court further considered his other fixed monthly expenses including the fact that their matrimonial home was on the market, but with no potential buyer who has been able to secure the necessary finance to purchase it.

Also considered was that the husband now was already making monthly maintenance contributions of R3,500 to his wife and daughter. He also solely carries  expenses related to their childrens education fees , his wifes vehicle, including the familys medical aid contributions.

On the wife’s claim for a contribution towards her legal costs in the amount of R100,000 – her legal costs to date exceed R400,000 – judge Van der Schyff considered that a husband’s duty of support includes the duty to provide the wife with costs for her litigation, and that she should be placed in a position adequately to present her case, as far as the available resources allow.  Van der Schyff highlighted that whatever these parties’ living standard was before their marriage breakdown, is irrelevant and that it is evident that their financial position has changed dramatically. These extended divorce proceedings are further rapidly depleting available resources.

In its determination, the court highlighted that the parties needed to make hard choices, which included reconsidering their son studying away from home and the possibility of him studying at a distance university while earning an income. In coming to the order, the court was restrained by the respondent’s capacity to meet the maintenance requirements of the applicant and the parties’ minor daughter.

The court ordered the husband to pay R5,000 per month interim maintenance towards the wife and their daughter and a contribution of R6,000 towards her legal costs – payable in monthly instalments of R750.

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