A Western Cape businesswoman with a “worrying track record of online gambling” has failed in her bid to get a court order instructing her soon-to-be ex-husband to pay her more than R400,000 and payment of monthly costs for her and their twins until their divorce is finalised.
In dismissing the rule 43 application for interim maintenance with costs, judge Daniel Thulare stated: “Rule 43 was not created to give an interim meal ticket” but rather to ensure justice and fair treatment of both parties. He said it was also not intended to cover legal costs — particularly not in advance as was claimed — but was rather based on the duty of support spouses owe to each other and parents to their children.
“The applicant exaggerated her expenses and understated the support that the respondent was providing to her and the children. This is dishonourable conduct which has no place in judicial proceedings,” Thulare stated in his scathing judgment.
The interim maintenance action was made by the woman just a few months after her husband served her with a divorce summons on January 23, prompting her to claim an interim maintenance order until the divorce is finalised.
What was of concern was that the bank statements revealed a worrying gambling pattern, with the use of the credit card, by the applicant.
— Court judge
Soon after receiving the divorce notice, the wife refinanced her car and served her husband with a domestic violence order. She ordered him out of the family home and blocked him from seeing their children, who turn four this year and are in nursery school.
The couple were married in April 2016, out of community of property and without accrual. Three years later twins “were born of the marriage”. In his claim for contact with the children, the husband asked that the parents contribute to the maintenance of the twins in proportion to their respective means and that he be allowed the same access to his children as before their split.
The wife, however, actively prevented this contact and “went so far as to inform the principal of the pre-school that she would do anything in her power to exclude the respondent from the children’s lives”. This had led to the husband applying for a care and contact order, while the wife filed a domestic violence application, which is pending.
The court found that during the marriage the couple had a generally equal earning capacity and had always contributed equally to living expenses. The husband had paid for the family’s medical aid and insurance policies as well as the levy, rates and taxes on the family home, valued at R4m, with about R250,000 owing on the bond.
But after receiving the divorce summons, the wife removed herself and the children from the medical aid and enrolled them on her own plan. She also contacted the managing agents and arranged to have the property accounts sent to her. She directed her husband to leave the home, and he moved in with his parents and was in the process of finding a rental home.
The court found that while the couple had historically equal earning capacities, the wife had changed jobs to become an independent broker — a move that would significantly increase her earnings but temporarily reduced her income while she established herself in her new position.
The husband opposed his wife’s application, which was for interim maintenance, her car payments, all the household contents and a R439,940 payment for her legal costs. He claimed that there was an interim order in place that allowed for the children to reside with each party 50% of the time, each meeting the costs of the children when they were in their care, with him paying the pre-school fees. The couple would also sell the family home and split the proceeds equally.
He argued that the wife could afford her own maintenance and legal costs. Bank accounts showing that debts claimed by the wife had been repaid or reduced to amounts lower than she claimed in her liabilities were produced.
“What was of concern was that the bank statements revealed a worrying gambling pattern, with the use of the credit card, by the applicant,” the court found, explaining that she had spent more than R185,000 on online gambling in four months then “pleaded being indigent and expected to be found lacking”.
She had also claimed a disposable income of more than R24,000 when she refinanced her car in February but told the court she needed to find new accommodation, prompting the court to comment that she had failed to establish a reason she should be paid anything for the times the children are with her.
“Just like every average South African on finances, she must cut her cloth to the size of her dress,” the court said, adding that there appeared to be no wisdom in her decision to redirect home expenses that were being paid by her husband to her own account and then claim this amount in a rule 43 application.
The court criticised the mother for inflating her liabilities and expenses, claiming for costs her husband was already paying and including costs that appeared to inflate spending on the children. She had also described the money she was demanding for legal costs as “a contribution”, when it was actually the full amount that had since been revised and reduced after the claim was made.
“It is not for this court to tell the applicant how to run her life and what to do with her earnings. As a result, it is generally none of the court’s business that she elected to pay R6,000 for life cover [on her father] and R10,000 per month for an annuity. However, when she uses that to advance a case that she cannot afford her lifestyle and wants the court’s intervention for the respondent to pay for it, it becomes my business,” the court said.
The court found no reason to interfere in the original interim arrangement agreed upon, “including the contact and care dispute between the parties” and that “the order as prayed for” was not fair to both parties.
The rule 43 application was therefore dismissed with costs, including the costs of counsel.
Specialist divorce lawyer Shando Theron said the padding of rule 43 application claims were fairly common, particularly in cases where applicants are not properly advised by their lawyers as to what constitutes a legitimate claim.
“You’ve got to take a realistic view and understand that the court will generally hold parties to what their contributions were before the divorce. You cannot suddenly go and claim money for hair, nails and make-up in a divorce when those things were never paid for in the marriage,” he said.
Theron said the intention of interim maintenance was generally to cover the costs of dependents — food, accommodation and school fees — and to stop the financially stronger party from starving the weaker party into accepting a lesser settlement than is fair.
TimesLIVE
Support independent journalism by subscribing to the Sunday Times. Just R20 for the first month.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.