Interim maintenance pending a divorce, which falls under what is known in law as a Rule 43 application, was not created to give an interim meal ticket to an applicant who quite clearly at the (divorce) trial will not be able to establish a right to maintenance.
This is according to an acting judge sitting in the Bloemfontein High Court, who said the purpose of Rule 43 is to provide a streamlined and inexpensive procedure for procuring the same interim relief in matrimonial actions as was previously available under common law in regard to maintenance and costs.
His comments were sparked by an application by a mother of two who claimed R20 000 a month maintenance from her estranged husband, pending their divorce.
The couple were married in March 2020, with the marital regime being out of community of property including the accrual system, but the husband meanwhile instituted divorce proceedings, which are still pending.
The wife, meanwhile, turned to the court to ask that he pay her R20,000 a month pending the divorce, although the husband opted to settle the matter out of court by paying her R7,000 a month.
He made it clear that as he is taking care of their two small sons, he cannot afford to pay her more.
The wife also wanted to retain the family car, for which she wanted her husband to pay, and she asked that he make a contribution towards her legal fees.
The husband, on the other hand, said his wife, who does not work, should make a plan to find a job.
The court was told that the wife is unemployed and has been since the birth of her first child. She suffered post-partum depression and was unable to cope with the children. She was also diagnosed with bipolar disorder.
The wife, who lives with her parents, said she actually needed more than R20,000 a month to make ends meet. Her list of expenses, handed to court, included money to buy pet food, for entertainment, pocket money as well as for the services of a helper in the house.
The husband said he earned slightly more than R42,000 a month.
His lawyer acknowledged that the wife has no income, but contended that her expenses are excessive and unsupported. It was further submitted that the husband had a lot of expenses as, among others, he had to maintain the children and the family car.
It was said that his expenses exceeded his income by R6,000.
The judge said it is common cause that the wife has a need for maintenance and though the husband is insinuating that it was self-created in that she is a qualified teacher and makes no effort to gain employment, the court cannot under the circumstances find this is so.
The court, however, found that the list of her expenses indeed contains luxuries which in the circumstances the husband cannot meet.
The court deducted the luxuries like pocket money, entertainment, pet food, domestic help and reduced the “excessive amounts”. In doing this, the court calculated that R8,000 a month was sufficient for her needs and the husband was ordered to pay this.
Pretoria News