Our Courts’ Views On The Duty To Pay Maintenance

Jun 27, 2023 | , , , , , , | News

The question that arises regularly in family law matters, and particularly divorce matters, is when can a party approach the High Court to vary a maintenance contribution order.

In a decision of 20 June 2023 in the Western Cape High Court, Judge Mantame heard a matter where the parties had been married both by Muslim rights and civil law. The Muslim divorce was finalised and became official in April 2019; however, the civil marriage appear not to be capable of being resolved.

Family Law

Various applications were brought before Court, and I discuss below specifically a variation sought in respect of a Rule 43 application that was heard and granted on 6 August 2020.

A Rule 43 application and Order relates to an interim maintenance order that is granted until the finalisation of the divorce.  In the Judgment, Judge Mantame commented that in his opinion the interim Order should ensure that the applicant continues with the lifestyle he/she enjoyed before the marriage disintegrated, that the process is designed to be as inexpensive and expeditious as possible, and that therefore such an application should be clear, short and precisely to the point, hence it requires being heard on an urgent basis.  Judge Mantame commented that this practice is no longer being adhere to, since applicants now file applications running into hundreds of pages and utilise these proceedings prematurely to force another party to discover their assets and preparations for Trial.  Advertently, Courts find themselves having to adjudicate Rule 43 applications based on aspects that never formed part of the parties daily living plan during this subsistence of a marriage.  This manner of litigation is prevalent in substantial estates and where another spouse is accused of concealing assets which were enjoyed by both parties during the marriage. 

Judge Mantame commented that Courts should be careful and prudent not to be strung along in this process by litigants who are unwilling to reach finality to their actions.  In the same vane the party’s legal representatives should guard against becoming involved in the party’s marital battles and thus neglecting their role as advocates, attorneys or legal practitioners.  Our courts are there to dispense justice and fairness and legal process, and are not to be abused. 

In the particular matter before Judge Mantame the applicant and respondent where married to each other out of community of property, with out accrual.  In April 2019, the respondent divorced the applicant in terms of his Islamic Law.  On 6 August 2020, a Rule 43 Order was granted pendete lite.  To the extent that no reasons were given by the Court for the respondent to pay an amount of R20 000.00 for maintenance, the court undertook its own assessment in coming to a conclusion as to whether the respondent is able to pay as ordered. 

The applicant had instituted a Rule 43 application, she stated that she had about R55 000.00 worth of savings and that she did not have immediate access to those funds.  Since the respondent had left the matrimonial home, she experienced financial difficulties and needed him to contribute to some of the living expenses.  She pointed out that the respondent transferred an amount of R20 000.00 from his bank account to unknown recipients.  When they lived together as husband and wife, the respondent used to give her an amount of close to R20 000.00 to utilise to cover all general house hold expenses.  In fact, sometimes he used to pay an amount of R18 500.00 to the applicant’s account to cover these expenses.  Judge Mantame commented that this was he assumed for those reasons that Salie-Hlophe J granted an Order for the respondent to pay an amount of R20 000.00 as maintenance. 

In this current application, the respondent requested a variation of the monthly amount to be reduced from R20 00.00 to R10 000.00 since there was a material change in his financial position since the Order was granted.  When the Order was granted, his monthly salary was about R63 680.00 per month.  This amount included an annual performance bonus over the seven-month period.  However due to some adjustments at his work place, his income has been reduced to R53 817.00 per month.  The respondent also presented a table that showed that before the Rule 43 order was granted that his expenses in maintaining two households were approximately R51 230.00 whilst he was earning an amount of R63 680.00 – this left him with R12 450.00 to utilise towards his legal representation. 

After the Rule 43 Order was granted, the respondent’s expenditure in respect of the two households increased to R61 872.00, whilst there was a reduction in his salary and he earned R53 817.00 per month.  This left him with deficit of R8 055.00.  To supplement deficit, he had to make use of this credit card, borrow money from his father and withdraw funds from an investment fund. 

The applicant denied the respondent’s changed financial situation, but did not present any evidence to rebut his averments.  Judge Mantame further commented that the Courtt is not tasked or obliged to consider unverified investments accounts in its decision, that the applicant knew more that two years ago that the respondent would be seeking a variation and she did nothing to investigate the veracity of her allegations or his future source of funds.  Therefore, in the absence of any proof to the contrary, Judge Mantame was satisfied that the respondent could not afford to carry on contributing financially to the two households, however, the respondent’s salary per month was not said to have changed at the hearing of the application.  Judge Mantame held that the maintenance contribution should be varied reduced to R15 000.00 per month. 

When seeking legal assistance specifically with regards to divorce proceedings and maintenance orders, it is in our view of tantamount importance that proper recordals of expenses, ability to pay, and so forth be kept by both parties.  Further, and in this judgment, a comment was made that at the commencement of these proceedings, the children were still minors and the father had sought for a number of years to restore his rights to contact with the minor children.  However, the legal proceedings had taken such a long time, that by the time this application was heard, the children had become majors (in other words they are older than 18).

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.


Michele Engela

Michéle Engela

Michéle Engela is a director at CK Attorneys.

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