Divorce: Claiming Interim Maintenance and a Contribution to Legal Costs

Even if your marriage is collapsing around you, you might be afraid to sue for divorce because you have no money to survive on, plus you know that a hotly contested divorce might take years to finalise while your breadwinner spouse fights you tooth and nail every step of the way.

How will you support yourself and your children until the case is finalised? How will you pay your lawyer to run the case for you? Must you wait for the end of the case before you see a cent?

The answer luckily is “no” in that you have a relatively quick and simple remedy in the form of asking the court for “interim relief” in respect of –

  • An order that your spouse pay you –
    • Maintenance (for children and/or for yourself) pending finalisation of the divorce,
    • A contribution towards your costs in the divorce proceedings,
  • Interim care of, and contact with, your children (if there is any dispute over this aspect).

You may well hear this form of relief referred to in High Court divorces as a “Rule 43 application” (or, if your divorce is in the Regional Court, as a “Rule 58 application”), whilst the technical term for the maintenance is “maintenance pendente lite” (“maintenance pending the litigation”).

At this stage the Court isn’t interested in recriminations, or blame-finding, or the itemised details of your and your spouses’ financial positions. Those enquiries come later, during the actual divorce litigation. At this stage all it wants to know is how much you need, and how much your spouse can afford to pay.

A recent High Court judgment illustrates…

A “coy about his wealth” spouse ordered to pay up – now
  • The warring spouses here are a senior banking executive and his wife, who qualified as a teacher but gave up that career to become a homemaker and mother to the couple’s two children.
  • She asked the High Court for interim maintenance for herself and the children, and for a contribution to her legal costs.
  • In assessing these requests the Court laid out some of the general principles involved –
    • Unless the care and residence of children is involved the issues are straightforward, relating to “the applicant’s reasonable needs, and the respondent’s ability to meet those needs. The applicant’s entitlement to maintenance must be assessed having regard to the standard of living enjoyed by the parties during the marriage.” This should be “a simple and straightforward calculation of needs and means”. (Emphasis supplied).
    • The aim is “to avoid substantial prejudice to either party pending divorce. It is not to provide a precise account of what is due to or from either party, according to the parties’ or the court’s sense of morality, propriety, the blameworthiness of the parties’ conduct during the marriage, or their habits of living after the separation.” The case should be cast in practical rather than moralistic terms, and the “emotional heat of a separation” should be kept out of it.
How much money could you be awarded?

Of course every case will be different, but where the parties have, as in this case, enjoyed a high standard of living, the figures can be substantial.

Here for example the Court’s awards were sizeable, commenting that the husband “is coy about his wealth, but there is little doubt that he has a substantial income” – just under R7m in the previous year – with “considerable resources” and an estimated net worth of just over R40 million. Moreover the couple had enjoyed “a very comfortable lifestyle” together.

The end result is that the husband must pay substantially what his wife asked for in the form of R1.6m immediately and thereafter R108k p.m. –

  • R88,701-69 p.m. for the wife and children’s interim maintenance, plus school fees, extra mural activity costs, medical aid and medical costs
  • Rental of up to R20,000-00 p.m., plus cost of utilities
  • R34 656.39 for house moving costs
  • R1,572,945-80 as a contribution towards the wife’s interim legal costs.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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A Victim of Sexual Harassment Must Report It “Immediately”

“…sexual harassment is a heinous and horrendous conduct since it undermines the dignity of women and the values enshrined in our Constitution.” (Extract from judgment below)

Employers have a strong duty to provide a safe workplace for their employees, and to protect them from harm – including sexual harassment. An employer who fails in this faces claims for damages and compensation, but as a recent Labour Court judgment shows, the victim must first follow procedure correctly, and without delay.

Delayed reporting kills a claim

A female employee claimed “a just and equitable compensation” from her employer after she was sexually harassed by two male superiors.

Her claim failed, the Court finding that her delay in reporting the incidents to her employer (two years in one case and three in the other) were……

The correct procedure, and the required timing

The employee’s claim was based on an allegation that her employer had contravened section 60 of the Employment Equity Act (EEA), which deems an employer guilty of a contravention and liable for the offending employee’s conduct unless it takes “the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act” and “is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.”

The Court set out the required steps by the victim as –

  1. Allege a contravention at the workplace
  2. Report the contravention immediately
  3. Prove the alleged contravention
  4. Allege and prove failure to take the necessary steps.

A victim who can prove all the above is entitled to a deeming order of liability, and to avoid liability it is then up to the employer to prove that it took the necessary and preventative steps.

The victim in this case had no trouble in proving that the incidents of sexual harassment had taken place, but she failed to convince the Court that she had brought the incidents to her employer’s attention “immediately” as required by the section. The Court referred to a previous decision of the Labour Appeal Court suggesting that the word “immediate” be given a “sensible meaning”. In that case a two-month delay in reporting was found to be acceptable as a “limited delay”. However the Court’s comment that “In my view, a delay is an antithesis of the word as literally defined” is a clear warning to victims – report incidents to your employer without delay!

In any event, held the Court, the victim’s delays in reporting (two and three years respectively) meant she had failed to report “immediately” as required.

The Court was equally unimpressed with her suggestion that she had indeed reported the incidents to her employer in time by discussing them with “colleagues and managers”. That, held the Court, was not enough: “As I see it, to my mind, the reporting must be to an employer through the mechanism in its adopted policy.” She had not done that, so there’s another clear lesson for victims there – make a formal report to the correct person/s in terms of your employer’s policies. 

Finally, said the Court, the employer had as soon as it received the reports, promptly investigated them and complied with its obligations in terms of the EEA.

Claiming from the offenders themselves

On a related note the Court mentioned that the victim would have a claim direct against the two employees who harassed her. Once again however, time is of the essence for victims – quite apart from the risk of the claim prescribing, the earlier formal reports are made the greater the credibility likely to be given to them.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Unmarried Parents: A New ‘Notice of Birth’ Ruling for Fathers, with 3 Surname Choices

“Whilst the Act no longer uses the term “illegitimate child” this is implied by the reference to so-called children “born out of wedlock” which continues to perpetuate the common law distinction between so-called “legitimate” and “illegitimate” children. This reference is a stark reminder that we, as a nation, are still grappling with outmoded legal terminology which goes to the core of dignity and equality, not only for the child but also the unmarried father, and indeed the unmarried mother as well.” (Extract from judgment below)
New parents, married or not, are obliged by the Births and Deaths Registration Act (“the Act”) to register their child’s birth with Home Affairs within 30 days. However in regard to the actual process of giving this “notice of birth”, the Act has always distinguished between married and unmarried parents. In particular, unmarried fathers have until now been unable to register the child under their own surname except with the mother’s permission. Given the importance – to the child, to the parents and to their wider families – of what surname is entered into the population register, it is perhaps no surprise that the validity of the Act’s differential treatment of married and unmarried parents has been challenged in the Constitutional Court. The Court’s decision is that the relevant part of the Act is unconstitutional and is struck down. The Court: “Children born to parents outside the marital bond are blameless, yet the retention of section 10 of the Act serves to harm children born outside of wedlock.  The status of being born out of wedlock, in effect, penalises the child and the unmarried father, and of course the mother too.  This differential treatment of children born out of wedlock is invidious and unconstitutional.  This differential treatment cannot be justified.”
The practical effect of the ruling, and the parents’ 3 surname choices
From now on, unmarried parents are in exactly the same position as married parents, so that either of them can give the notice of birth under –
  1. The father’s surname, or
  2. The mother’s surname, or
  3. The surnames of both the father and mother joined together as a double-barrelled surname.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Spousal Maintenance After Divorce and the “Clean Break” Principle

“The clean break principle after divorce has found resonance with our courts for many years.  The aim of this principle is to ensure that the parties become financially independent of each other as soon as possible after divorce.” (Extract from judgment below)

Our courts always prioritise the interests of children in any marital breakup, and child maintenance orders are accordingly tailored to ensure that both parents honour their obligations to support their children financially – to the extent that each spouse is able to do so, and for so long as is necessary.

Spousal maintenance on the other hand requires a more delicate balancing act. In a nutshell, spouses have a “reciprocal duty” to support each other during the marriage, and although that duty ends when the marriage ends, courts still have a wide discretion to order either “permanent” or “rehabilitative” maintenance of the financially weaker spouse by the financially stronger spouse.

Let’s have a look at a good example of how this discretion is applied in practice –

A bitter divorce and a claim for “permanent” maintenance
  • A couple were married “out of community of property with accrual”.
  • Their eventual divorce action required the Court to adjudicate a litany of bitter disputes, allegations and counter-allegations of misconduct and abuse.
  • Whilst for our purposes we’ll concentrate on how the Court addressed the wife’s claim for “permanent maintenance” and the husband’s (reluctant) counter-offer of “rehabilitative maintenance” for a limited period of time, it is important to note that the maintenance issue was decided against the background of the other financial benefits awarded to the wife. She received 50% of the “accrual” in the estate, including a house, pension, and annuities – i.e. she did leave the marriage with a capital sum of money.
  • The wife had previously been granted an interim order of maintenance of R6,500 p.m. “pendente lite” (“pending the litigation”). At the divorce hearing she argued that her chances of ever becoming self-supporting were slim given her age, health, outdated qualification, and limited exposure in the open labour market.
  • Her husband on the other hand argued that she had “numerous skills and talents and has the potential to secure employment and earn a salary to support herself which when coupled with what she will receive from the accrued estate constitutes ample income to enable her to become self-sufficient.” Moreover he would retire in two years and his income would seriously decline as he would be dependent on his pension for his own support.
  • Before we consider the legal aspects, an important factual finding by the Court was that the wife did indeed have at her disposal “numerous administrative skills and talents which will enable her to secure future employment”, and that there was no medical evidence to suggest that she could not find employment.
The law and the maintenance order
  • As the Court put it: “The clean break principle after divorce has found resonance with our courts for many years.The aim of this principle is to ensure that the parties become financially independent of each other as soon as possible after divorce. This principle however has to be applied with due consideration of the particular circumstances of each case and if such circumstances permit.”
  • The parties, said the Court, clearly wanted to “cut all ties and put an end to the marriage. In these circumstances, achieving a clean break finds resonance with this court.”
  • Its conclusion: “Consistent with [the] principle of a clean break that resonates through our judgments, it is incumbent upon this court to equip the plaintiff to live independently of the defendant and to focus on developing and empowering herself to secure and sustain her future. In the circumstances, I am of the view that the required result which is the ultimate self-sufficiency of the plaintiff will be achieved by rehabilitative maintenance. I am further of the view that a proper analysis of the rationale behind the awarding of rehabilitative maintenance will conclude that an arbitrary period of the payment of rehabilitative maintenance will not address the ultimate achievement of self-sufficiency. A two year period of rehabilitative maintenance is justified in the circumstances.” (Emphasis supplied).
  • For a period of 24 months after the divorce therefore, the husband must pay rehabilitative maintenance of R8,000 p.m. in addition to keeping his ex-wife on his medical aid and paying all her medical expenses.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Can You Change Your Marital Regime After Marriage?

“A journey is like marriage. The certain way to be wrong is to think you control it” (John Steinbeck)

One of the most important decisions you must make before you marry is what “marital regime” (“matrimonial property system”) you want to apply to your marriage.

To recap, you have three choices –

  1. Marry in community of property: This is the default in South Africa if you don’t sign an antenuptial contract (“ANC”) before you marry. All your assets and liabilities (with a few specific exceptions) are pooled in one joint estate. It’s probably not the best choice for most couples – you don’t for example want to be lumbered with a poor credit record (and a bank rejecting your bond application for example) or even with a sequestration application because of a spouse’s debts. But as the old saying goes, “it depends…”
  2. Marry out of community of property with accrual: The most popular option with couples these days, under this regime you keep as your own separate property whatever you brought into the marriage, but in the event of divorce or death you share equally in any subsequent “accrual” (growth in asset value built up during the marriage). You must specify accrual in your ANC, otherwise “without accrual” (as below) will apply.
  3. Marry out of community of property without accrual: As the name suggests, under this regime you have your own separate estates, and there is no sharing of accrual. The best choice for some couples in some cases, but probably not for most.
“Oops, we made the wrong choice; what now?”

A surprising number of couples tie the knot without any thought for the legal consequences, and only later do they learn that because they had no ANC they are married in community of property with all that that entails.

Or perhaps they did think it through but made the wrong choice at the time. For example, you could find yourself needing to improve your personal credit record, perhaps after applying to a bank for a mortgage bond and being rejected because of your spouse’s debts.

The good news is that all is not lost – you can still change regimes with a “postnuptial contract”. The bad news is that we are talking an expensive application to court here, and there are various requirements which may frustrate your application.

A court order is essential

The Matrimonial Property Act specifically allows a married couple to “jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage”.

You will have to satisfy the court of three things, namely that

  1. there are sound reasons for the proposed change;
  2. sufficient notice of the proposed change has been given to all the creditors of the spouses; and
  3. no other person will be prejudiced by the proposed change.
The couple who didn’t get court authority
  • A couple had married out of community of property excluding accrual.
  • Thereafter, the wife drew up an agreement as “an ‘insurance policy’, to allay her fears of insecurity in the event of a divorce”. The husband agreed to set aside his marriage contract, specifying that his wife was entitled to half of his estate.
  • After some hesitation the husband signed this agreement, but critically it was never sanctioned by a court as required and was merely handed to friends for safekeeping.
  • During subsequent divorce proceedings, the wife was forced to abandon her main claim (that the agreement was valid and binding) precisely because of her failure to obtain a court order as set out above.
  • She also tried another tack, namely that the agreement was enforceable as an agreement “in anticipation of divorce”. This was rejected by the Supreme Court of Appeal on the facts, finding that the parties had had a “normal marital relationship” after the signing of the agreement, and that the wife had accordingly failed to prove that divorce “was in the parties” contemplation when the agreement was concluded”.
  • The Constitutional Court cemented her defeat in this regard by refusing its leave for her to appeal the SCA decision.

Ask your lawyer before you marry which marital regime is best for you. And if you didn’t do that, or if you change your mind later, you must ask a court to authorise your change of regime.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Extended: The Rights of Grieving Parents to Choose Burial After Pregnancy Loss

Expectant parents who lose a pregnancy before 26 weeks (the age set by the Births and Deaths Registration Act (BADRA) in its definition of “still-born”) have until now had no right to bury their foetus, which had to be incinerated as “medical waste”.

That has changed with a recent High Court order declaring the relevant provisions of BADRA unconstitutional. That order is suspended to give Parliament an opportunity to amend BADRA, plus it must also go to the Constitutional Court for confirmation. But in the interim the Court has allowed burial (via the issue of a “stillbirth certificate” or “declaration of stillbirth”) on request by the bereaved parent or parents. 

The Court declined to extend this new choice to foetal deaths resulting from human intervention (“voluntary induced termination”) so for now at least this new freedom to choose is available only to grieving parents in the case of natural deaths (miscarriages).


Who Gets the House on Divorce?

“I am a marvellous housekeeper. Every time I leave a man, I keep his house” (seven-times-divorced actress Zsa Zsa Gabor)

Historically 44% of South African marriages have ended in divorce, and there has reportedly been a 20% surge in new divorce applications since lockdown.

For those unfortunate couples whose marriages do eventually fall apart, often the most important asset in play from both a financial and an emotional perspective is the family home. So it is crucial for any couple contemplating marriage, or currently married but considering a split, to understand what our law says about who gets what on divorce. 

Your divorce order as issued by the divorce court will be the “final word” here. If you have been able to agree on a split of assets and liabilities your agreement will typically be contained in a “consent paper”, and agreement is of course very much “first prize” here. Particularly if you have children – exposing them to a bitter fight over assets and to the risk of having to leave their childhood home and neighbourhood will only add to the disruption and trauma in their lives. In any event if you can’t agree terms, you are in for some emotional, time-hungry and expensive litigation before a court finalises the split for you.

A variety of factors will be at play here, all linked to the question of what “marital regime” applies to your marriage so the first question you need to ask is whether you are married in or out of community of property – and if out, does accrual apply?

If you are married in community of property

This is the default marital regime for South African marriages, and if you didn’t sign an ante-nuptial contract (“ANC”) before you married, all your assets and liabilities at date of divorce (with a few specific exceptions) will automatically belong to both of you in “undivided shares” i.e. 50/50.  

Typically, your divorce order and/or consent paper will provide for one spouse to become the 100% owner, with a suitable financial adjustment between you to account for the value of the other spouse’s 50% share.

No formal transfer of the property in the Deeds Office is needed, your attorney will just arrange for an endorsement on the property’s title deed to transfer ownership. 

If you are married out of community of property 

You have two separate estates and what you bring into the marriage remains yours, as does any growth in asset value during the marriage. 

As to who keeps (or gets) the house, and as to how much if anything the other spouse must pay in return, that will depend on a host of factors including the terms of your ANC and whether you were married with or without “accrual”. 

“With accrual” is the default unless you specifically opt to marry “without accrual”. In practice most modern couples specifically opt for accrual, in which event the combined growth in value during the marriage of your two estates will be split between you.

If the house is currently registered in only one of your names and that spouse is to keep the house, no formal transfer nor endorsement of the title deed will be necessary. If however the other spouse is to become the registered owner, a full transfer of ownership in the Deeds Office is needed. Although an exemption from transfer duty applies in this case, there will still be other transfer fees and costs to consider.

If you are co-owners of the property (in other words, if you are jointly recorded as owners on the title deed) you will almost certainly want to transfer full ownership to the one spouse. Again, a full transfer will be needed (see above re costs). There is however nothing to stop you agreeing on a temporary or permanent continuation of the co-ownership after divorce, perhaps to minimise disruption to your children’s lives, or perhaps while you jointly market and sell it at the best price (in which event your agreement should specify in detail who will pay what costs, what the minimum purchase price will be and so on).

Who pays off the mortgage bond?

If you are currently registered as co-owners, both of you will be equally liable for the full remaining debt owing to the bank. If one of you is the owner and the other is to take transfer, the current owner remains solely liable for the loan debt until released by the bank.

Whichever spouse keeps (or takes over) sole ownership of the house will have to make a new loan application to the bank in his/her own name and be substituted as the sole debtor/mortgagor. 

If you get the house, how will you pay out your ex-spouse?

As above, normally there will be a financial adjustment between you to compensate the other spouse, and if you don’t have the funds available you may need to ask the bank for a second mortgage. 

You could of course also agree to sell the house and split the proceeds after settling the existing bond. 

What if our house is owned by a trust or company?

Houses and other properties have historically often been held in trusts or companies for estate planning and asset protection purposes, and our courts are regularly called upon to resolve bitter disputes along the lines of “it was all a sham, the house never really belonged the trust, so please Judge order the trust to put it back into the pot as a personal asset”.

The spouse making such a claim will generally have to prove some form of “abuse” of the trust before a court will order that the house in fact belongs to the other spouse personally. But there are grey areas here and professional advice specific to your particular circumstances is essential.  

Prevention being better than cure….

Your house could well be your marriage’s most important asset both financially and emotionally. Rather than fight over it when divorce looms, seek professional advice before you tie the knot on what marital regime is best for you, and on how best to sort out who gets the house if you should be unlucky enough to part ways down the line. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advices

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Buying a Property: Check the Seller’s Marital Status!

“…a third party is expected to do more than rely upon a bold assurance by another party regarding his or her marital status” (quoted in judgment below)

If you are taking advantage of our current low interest rates and reduced selling prices to buy a property, make sure that you establish the seller’s marital status with something more than what the seller tells you.

Your risk comes in if the seller is married in community of property. That’s because, whilst our law generally allows spouses in such a marriage to “perform any juristic act with regard to the joint estate without the consent of the other spouse”, there are exceptions.

And one exception relates to immovable property. A spouse needs the written consent of the other to sell, mortgage or burden the property (by granting a servitude over it for example). Without that written consent the transaction is void, unlawful and unenforceable.

Which is where the danger comes in. Consider this scenario – you pay for and take transfer of a property from a seller who you think is unmarried, but a spouse suddenly appears and says “I never consented to that sale so it’s void. The transfer to you is cancelled so out you go and good luck getting your money back”. What now? 

Competing rights and a balancing act

There is of course a fine balancing act for courts involved here – on the one hand, the rights of the non-consenting spouse and on the other hand your rights as a good-faith buyer from a seller who you believed to be unmarried.  

A recent Supreme Court of Appeal (SCA) judgment addressed exactly that situation.

“But I thought I was buying from an unmarried seller”
  • A husband married in community of property sold and transferred a house to a buyer in 2009. At the time, his wife was not living in the house, having moved to another part of the country due to old age.
  • When the seller passed away in 2013 his wife was appointed executrix of his deceased estate. Some four years later she successfully applied to the High Court for cancellation of the deed of transfer on the basis that the sale had been without her knowledge or consent.
  • The buyer appealed to the SCA on the basis that the wife’s consent to the sale should be “deemed” to have been given in that the relevant legislation provides for such deemed consent where a buyer “does not know and cannot reasonably know that the transaction is being entered into contrary to [the requirement for written consent]”. 
  • He had, said the buyer, acted bona fide (in good faith) as he had not known of the marriage: “At the time I purchased the property from the deceased/seller, he was staying alone in the said property and he also confirmed to me that he was not married. He signed the deed of sale and also the transfer documents alone as unmarried.”
What the buyer must prove

The buyer had to prove that he did not know, and could not reasonably have known, that consent was needed but lacking. 

What the Court here needed to decide was whether the buyer should at the time of the sale have known of the marriage and the lack of written consent. “A duty is cast on a party seeking to rely on the deemed consent provision” held the Court “… to make the enquiries that a reasonable person would make in the circumstances as to whether the other contracting party is married, if so, in terms of which marriage regime, whether the consent of the non-contracting spouse is required and, if so, whether it has been given.”

Finding that the buyer had indeed proved (1) that he did not know that the deceased was married and (2) that he could not reasonably have known this, the SCA allowed the appeal and the transfer to the buyer stands on the basis of deemed consent by the spouse. 

The facts of each case will be different, and it is important to bear in mind that in this particular matter the husband’s claim to be unmarried was supported not only by the absence of any sign of a wife but also by two official documents – the deed of transfer and the power of attorney to pass transfer.

The bottom line is that as buyer you must make “reasonable enquiries” as to the seller’s marital status and as to whether the other spouse’s written consent to the sale is needed.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Grandparents – When Must You Pay Maintenance?

“An inability on the part of the parents to maintain a child must be established before a grandparent will be legally liable to do so” (extract from judgment below)

One wonders how many grandparents are aware of (let alone plan for) the possibility that they may have a legal duty to support their grandchildren in certain circumstances.

It could be a heavy blow – trying to navigate one’s retirement financially can be hard enough without suddenly having to maintain not only yourself and your spouse but also a grandchild, possibly for decades. And what about the risk that when you die your deceased estate might remain liable – a drain, possibly a critical one, on your estate’s sufficiency to support your surviving spouse?

A recent Supreme Court of Appeal (SCA) decision confirms that –

  • As a grandparent you are potentially liable for maintenance during your lifetime but
  • When you die, your deceased estate will (as the law currently stands) not be liable. 
The adult granddaughter’s claim and the law

This was a damages claim against the executors of a grandfather’s deceased estate based on the proposition that the estate was liable to pay maintenance for a 30-year-old granddaughter unable to support herself because of psychiatric issues, mild intellectual disability and an autism spectrum disorder. The father had emigrated, had paid no maintenance, and was allegedly untraceable, whilst the mother’s ability or inability to fully support her child had not been established.

The SCA was asked to break new legal ground by extending a grandparent’s liability to his or her deceased estate, but on the evidence before it in this case (i.e. our courts may revisit this issue in the future) the Court declined to extend the law in this way, and set out our current law as follows –

  • Liability for maintenance generally depends on three factors –
    • The claimant’s inability to support him or herself.
    • His or her relationship with the person from whom support is claimed. 
    • That person’s ability to provide support.
  • The primary caregivers are the parents who have a duty of support as far as they are able to do so (this applies also to the parents’ deceased estates when they die). 
  • Parents and children have a reciprocal duty of support.
  • “If parents are unable to support their children who are in need of support, other relatives including grandparents, may be obliged to support them … But that duty is imposed first upon a nearer relative before it moves to remoter ones.” (Emphasis supplied).
  • However, as our law stands, a grandparent’s deceased estate is not liable.
In summary – 3 factors for liability

In other words, you (but currently not your deceased estate) could be liable to pay maintenance if –

  1. Your grandchild is not self-supporting, 
  2. Neither parent (nor their deceased estates) is financially able to provide the necessary support, and 
  3. You are financially able to do so.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Collecting Maintenance in Hard Times – Threaten Jail Time

“Compliance with court orders is always important. There is a particular scourge in this country of spouses, particularly husbands, failing to pay judicially ordered maintenance” (extract from second judgment below)

Getting money out of serial maintenance defaulters is a notoriously difficult exercise, but even the most recalcitrant and cunning dodger will baulk at the prospect of being locked up for contempt of court.

And our courts, mindful of their position as “upper guardian” to all children, have shown again and again that they will have no hesitation in acting firmly against the sort of bad-faith defaulters we are talking about.

What must you prove?

You must prove not only a deliberate breach of the court order, but also that the breach was “wilful” and in bad faith. Although normally in non-criminal matters the standard of proof required is “on a balance of probabilities”, in contempt proceedings you have to prove bad faith on the much higher standard required for criminal convictions i.e. “beyond reasonable doubt”. 

As the Court in the second case below put it: “If, on a conspectus of all the evidence, it is a reasonable possibility that the husband’s non-compliance was not wilful and mala fide, he cannot be subjected to criminal sanctions for contempt.”

Of course, genuine inability to pay, which is no doubt more common now than it was before the COVID-19 lockdown, is a different matter altogether. We are talking here about dodgers who are able to pay but refuse to do so. A defaulter who simply cannot pay should apply for a variation of the court order. If the order stands, payment must be made – end of story.

Two recent High Court decisions illustrate –

First case: A “brazen” defaulter’s choice – pay or go to jail 
  • A father had been ordered, per a 2017 divorce settlement agreement, to pay R15,000 p.m. maintenance for his two minor children. He stopped paying in early 2018 and by the time this matter reached court he had run up arrears of R537,499. 
  • In response to the mother’s application to have him jailed for contempt of court, the father pleaded poverty – a standard ploy.
  • The Court was having none of that, and the mother had no difficulty in proving her case for contempt. 
  • Pointing out that the father was earning R147,000 p.m. (R83,000 net plus R10,000 to a provident fund), that he was paying R11,000 p.m. for a BMW and R14,000 p.m. on online gambling and trading, and commenting that “father’s position is extraordinarily brazen” the Court declared him to be in contempt of court. 
  • To avoid 30 days behind bars he must pay off the arrears in instalments in addition to keeping up his monthly maintenance payments. He also has to pay all legal costs on the punitive “attorney and client” scale.
Second case: Sorry, dogs, it’s not quite the same for you

Although our courts naturally take a dim view of anyone disregarding any form of court order, jail time is not the only possible sanction. Thus, in another recent High Court case a fine (R20,000 conditionally suspended for three years) was imposed rather than a prison sentence.

  • An acrimonious divorce action found a husband ordered to pay his wife on an interim basis for a variety of household expenses, including (the aspect that has captured most attention in the media) expenses relating to the couple’s two dogs for dog food, a dog walker, and veterinary, medical, and pharmaceutical expenses.
  • The husband claimed a genuine misunderstanding of his obligations under the court order (not least regarding his various obligations vis-à-vis the dogs), a defence accepted by the Court in some regards but not in others.
  • He also claimed inability to pay as a result of the lockdown’s effect on his company and his resultant reduction in salary – a defence rejected by the Court on the basis that he had “failed to put up evidence which should have been available to him to support a claim of unaffordability”. Similarly, his counter-application to reduce the amount of cash maintenance payable failed.

As to why the defaulter in this case avoided a prison sentence (as requested by his wife) the Court concluded that “imprisonment is not called for. I am dealing with a first infraction, which is considerably narrower than what the wife alleged.” One wonders whether another factor in that outcome might have been the fact that no children were involved, just a wife seemingly “unattractively intent on extracting more than her ‘pound of flesh’” and two pampered pooches. Certainly, the wife’s failures led the Court to award the wife only 75% of her costs, and on the ordinary cost scale rather than on a punitive scale.

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