Judges take divorce seriously – so should you

The courts will look at financial stability and well-being of families, particularly children, to ensure maintenance orders are executed. Picture: Cordell and Cordell/Flickr.com

The courts will look at financial stability and well-being of families, particularly children, to ensure maintenance orders are executed. Picture: Cordell and Cordell/Flickr.com

Published Jan 30, 2024


Two recent court cases concerning divorce and maintenance should be of interest to couples contemplating going their separate ways. The first is essentially about fairness in how our courts deal with families that are breaking up; the second is about the law allowing access to retirement savings to settle maintenance obligations.

Separation application

In the case MV versus EV (née VS), concluded on December 14 last year, a farmer applied to the Western Cape High Court to separate the granting of a divorce decree from issues that are normally dealt with in the divorce proceedings: spousal maintenance, child support and the distribution of assets. The proceedings had been going on since mid-2020, about three-and-a-half years.

Such an option is open to divorcing couples if it can be shown that separating the decree of divorce from the issues of maintenance and asset distribution will be more convenient for both parties and speed up finalising the case.

The farmer argued that he had stage-four cancer for which he had received chemotherapy; he had depleted most of his assets in temporarily supporting his family, which included two children; and the strain of the divorce proceedings was badly affecting his health. He argued that separating the issues would be beneficial to both parties.

His wife opposed the application. She argued that her husband’s condition was not as serious as he portrayed. She suspected he had other assets he had been hiding from her, and the application was a tactical move to prevent her from accessing his medical and financial records to fully assess his health and wealth.

The judge, Judge Daniel Thulare, dismissed the case. His main point was that the stress between the parties was not because of the lack of a divorce decree, but because of the very issues the applicant had sought to make separate.

“I am unable to find any explanation how the granting of an urgent decree of divorce will grant relief to the applicant’s alleged agony when the division of the estate, which is at the heart of the acrimonious litigation between the parties and the primary source of their distress, will still be hanging over his head … The extent of the respondent’s entitlement to spousal maintenance, the redistribution order and the legal costs remain at the eye of the storm between the parties,” the judge said.

In a blog on the case, Bertus Preller, a family law attorney at Maurice Phillips Wisenberg in Cape Town, said the judge’s decision was “firmly rooted in the principles of fairness and judicial integrity”.

Preller said: “By emphasising the importance of considering all aspects of a case, including the potential impact on all parties involved, Judge Thulare upheld the principle that the legal process should serve the interests of justice, not just the convenience of one party. His decision reflects a deep understanding of the law and its purpose in resolving disputes equitably, particularly in complex matrimonial cases where the stakes are high, and the outcomes significantly affect the lives of the parties involved.”

Maintenance decision

The case MO versus RO and Another concluded in the Western Cape High Court on January 5, concerned a man’s failure to pay maintenance, which led to the attachment of benefits in his retirement annuity fund (RA).

In October last year, about a year after the wife in the case, MO, had filed for divorce, the court issued an order requiring RO to pay maintenance of R18 000 a month to her and their three minor children from November 1, 2023. Two weeks later, after not receiving anything from her ex-husband, MO applied for RO to be held in contempt of court. The court ordered that RO pay maintenance arrears and other costs for which he was liable, amounting to about R31 000, within 10 days.

When RO again failed to pay up, MO went back to court, asking that her ex-husband’s retirement benefits in his RA be attached to settle the arrears.

The decision, by Judge Constance Nziweni, relied on provisions of the Maintenance Act and the Pension Funds Act, which allow access to savings in a retirement fund to offset maintenance obligations. She ordered the fund to pay R29 000 from RO’s retirement benefits to settle the maintenance arrears.

“Ïn summary,” said Preller, “this judgment highlights the judiciary’s role in protecting the interests of dependants and upholding the sanctity of family law obligations. As such, it is a significant step towards ensuring that maintenance orders are effectively executed, thereby safeguarding the financial stability and well-being of families, particularly children, in the face of marital breakdowns.”