The High Court in Cape Town has rejected a divorcing woman’s claim to be awarded almost R300 000 to cover accommodation-related expenses, saying interim maintenance orders do not contemplate once-off or lump-sum payments.
The Court also rejected her claim for R260 000 for holidays and domestic and overseas travel, nor did it accept that she was entitled to R1.03 million to cover past and future costs related to the divorce litigation.
The woman, identified as “KF”, brought an application in terms of Rule 43 of the Uniform Rules of Court for interim maintenance and a contribution towards the cost of the pending divorce action.
Acting Judge Graham Leslie said Rule 43 is intended to provide an inexpensive and expeditious mechanism to enable a spouse (usually the wife) to claim maintenance from the other spouse pending the finalisation of the divorce.
“Given its temporary nature and purpose of affording speedy relief to a spouse who may have been cut off from financial support on which she was dependent, the issues cannot be determined with the same degree of precision as in a trial. Each case is dependent on its own facts. However, the general governing principle is that the applicant is entitled to reasonable maintenance pendente lite [literally “awaiting the litigation”] having regard to requirements and the capacity of the respondent to meet such requirements,” Acting Judge Leslie said.
KF and her husband, “MF”, were married in 1992 and concluded an antenuptial contract with accrual. The couple separated in March 2022, and KF instituted divorce proceedings 12 months later.
They have four children, the youngest of whom is 18. The maintenance of the children was not part of the Rule 43 application.
MF was the sole breadwinner in the marriage. KF has not worked since 1997 and spent most of her adult life raising the children.
Acting Judge Leslie said the parties are in dispute as to the extent and sources of MF’s wealth. On MF’s version, he has R285 822 to fund his monthly expenses. KF alleges he has access to considerably more than this, mainly through two trusts – between R700 000 and R800 000 a month.
The dispute could not be resolved in the Rule 43 application. But the court accepted that MF did have access to more than R285 000 a month. On MF’s version, his expenses were R366 766 a month, including the payments he made to or on behalf of KF.
KF’s claim
In her application, KF sought an order for the following:
- Monthly maintenance of R96 925.
- Payment of her medical scheme contributions and out-of-pocket medical expenses, cellphone contract, and the levies and other costs associated with her accommodation at an apartment in Fresnaye, Cape Town.
- Payment of R260 000 a year in respect of her holidays and local and overseas travel.
- Lump-sum payments totalling R297 202 pertaining to moving costs and furniture and renovations to the apartment.
- The continued use of a holiday home in Nieu Bethesda, together with the payment of the domestic staff there.
- The continued use of a Volkswagen Beetle, together with the payment of licensing, insurance, and maintenance costs.
- Payment past and future legal costs of R475 000 and R555 000, respectively.
- Payment of up to R35 000 for an industrial psychologist to assess her earning capacity. KF was finalising her doctorate in neuroscience at the University of Cape Town.
For his part, MF said he was prepared to continue paying his wife R80 488 a month, which included maintenance of R70 000, plus medical scheme cover, vehicle insurance, and her cellphone contract.
He offered to contribute R250 000 towards KF’s past and future legal expenses.
Maintenance claim is excessive
In assessing KF’s claim for monthly maintenance of R96 925 plus other payments, the Court noted the content of WhatsApp messages between the parties in 2022, after KF had moved out of the marital home in Pretoria to Cape Town, and three schedules produced by KF between late 2022 and March 2023 that provided a budget of her monthly expenses.
In the most recent schedule, KF claimed she needed R128 298 a month – an increase of R18 000 from the second schedule (in January 2023) and R58 000 from the first schedule.
Acting Judge Leslie said R128 298 “appears excessive”. For example, about R15 000 a month was claimed for personal care, excluding a Pilates class (R3 466), which was a new expense. Nearly R20 000 a month was claimed for groceries, “which by any standards is excessive for one person’s needs”.
The schedule also included a loan repayment of R7 551 in respect of renovations to KF’s apartment, to which MF had not agreed, and R15 388 in respect of overseas holidays.
“In my view, the third schedule is artificially inflated and is out of kilter with the applicant’s reasonable requirements,” Acting Judge Leslie said.
The Court noted that MF’s household monthly expenses, excluding legal fees and mortgage bond repayments, were R109 551 – and two of his adult children were living with him. This supports the view that R70 950 was adequate to maintain KF “in the lifestyle to which she is accustomed”, particularly if her reasonable medical, accommodation, and transport costs are catered for separately.
Acting Judge Leslie said KF’s claim of R260 000 a year for local and overseas holiday travel was inappropriate. “It is precisely this type of ‘luxurious’ claim that Rule 43 is not intended to address.”
He said the monthly maintenance of R70 950 should be sufficient for KF to afford airfares between Cape Town and Johannesburg from time to time.
Rule 43 does not encompass lump-sum payments
KF claimed lump-sum payments of almost R300 000 in respect moving and settling-in costs and furniture and renovations to her apartment.
Acting Judge Leslie said that, in Greenspan v Greenspan (2000), the court held it had no power to award lump-sum payments in terms of Rule 43(1) – similar to those claimed in the present matter. The court therefore refused to award amounts that were, inter alia, claimed in respect of the purchase of furniture items.
Counsel for KF said the Greenspan decision was influenced by the Full Bench’s judgment in Zwiegelaar v Zwiegelaar, where the court determined that it lacked the power under section 7(2) of the Divorce Act 70 to order what amounted to lump-sum maintenance payments. However, the Zwiegelaar judgment was reversed by the Supreme Court of Appeal (SCA), which held that, under section 7(2), the trial court was competent to grant a sum for household necessities after an individual’s removal from a shared residence. This basis, counsel submitted that the Greenspan precedent was outdated and should be disregarded.
Acting Judge Leslie disagreed.
“The court in Greenspan was dealing with a maintenance claim pendente lite under Rule 43, whereas the claim in Zwiegelaar involved a ‘final’ maintenance order under section 7(2) of the Divorce Act – until the appellant’s death or remarriage, whichever occurred first.
“Although the court in Greenspan relied on the Full Bench decision in Zwiegelaar to support its conclusion, it was at pains to point out that there were additional considerations in a Rule 43 application militating against awarding lump-sum amounts pendente lite.”
Unlike ordinary motion proceedings, Rule 43 is designed to afford an inexpensive procedure for granting interim relief.
He said a further consideration is that Rule 43(6) allows for the variation of a maintenance order if there is a material change in the financial circumstances. This supported the inference that once-off or lump-sum maintenance payments were not contemplated Rule 43 because they could not be adjusted after payment.
He said the ruling in Greenspan remained binding on the Court, notwithstanding the SCA’s judgment in Zwiegelaar.
Even if he were incorrect on this point, Acting Judge Leslie said it would not be reasonable to award KF the amounts claimed.
MF had already paid about R800 000 towards KF’s relocation and set-up costs after she left the marital home. Moreover, a fair portion of the amounts claimed were related to renovations undertaken by KF, to which MF had objected. When MF bought the apartment, it had recently undergone a R1m renovation.
‘Inflated’ legal expenses
KF claimed past and future legal costs of R475 000 and R555 000, respectively.
Acting Judge Leslie said a significant portion of the R475 000 was linked to the Rule 43 application, which, he said, were not claimable under Rule 43.
MF had incurred costs of about R290 000 up to that point in the divorce proceedings. According to the judge, this amount seemed a reasonable contribution towards the KF’s past expenses.
He said the claim of R555 000 for future legal expenses “appeared somewhat inflated”.
Although the treatment of the trusts’ assets introduced some complexity, Acting Judge Leslie said the future litigation would not be, or should not be, particularly arduous or complicated. Much of the preparatory work for the maintenance claim had been undertaken in these proceedings.
He said R290 000, which was double KF’s reasonable costs in the divorce to date, was a reasonable contribution towards her future legal costs.
Court order
In addition to ordering MF to pay KF maintenance of R70 950 a month and contribute R580 000 towards her legal costs, the court ordered him to:
- Retain KF as a medical scheme beneficiary and pay her out-of-pocket medical expenses.
- Maintain and renew his wife’s cellphone contract.
- Pay the levies, utility and internet expenses, and the insurance premiums associated with KF’s accommodation.
- Permit KF to use the Beetle, together with the payment of licensing, insurance, and maintenance costs.
- Allow KF reasonable use of the holiday home.
- Pay up to R35 000 to an industrial psychologist.
The costs of KF’s application would be determined by the court that heard the divorce action.
