A judge frowned upon a divorcing husband’s stance that he does not need to pay his wife interim maintenance pending their divorce, as she is “comfortably” living with her parents and their child.
This, while the cheating husband is living in the matrimonial home.
The Gauteng High Court, Johannesburg said the husband’s submissions that the wife has thus far been living comfortably with her parents and should continue to do so, is unsustainable and opportunistic.
“It is his legal duty to accommodate her. It is noteworthy that he continues to live in the matrimonial home while she was forced to leave because she felt disrespected due to his infidelity.
“She needed accommodation and looked to her parents, who out of their love for her and their grandchild accommodated her,” the court said.
The wife turned to court for interim maintenance and a contribution toward her legal costs in the divorce action. In terms of a prior agreement, the husband is paying maintenance for their only child, but he refuses to do so for the wife.
The court was told that both the husband and wife are professional people who each earn a good salary.
In 2017 when their relationship broke down due to the husband’s extra marital relationship, the wife left the marital home and lived with her parents, while the husband remained in the house.
During their marriage, the parties were both avid adventure seekers and enjoyed a comfortable lifestyle. They travelled to several international destinations and climbed mountains together. The husband respondent continues to enjoy several hobbies, including skydiving and aviation.
Recently he went on an expedition to climb the K2 mountains which borders China and Pakistan, considered the ultimate climb by mountaineers, the court noted.
In his papers before court, the husband said: “We were both professionals, earning independent incomes which we pooled, to ensure that we lived comfortable lifestyles.”
The advocate who represented the wife, told the court that even without her income the husband continues to enjoy a similar lifestyle to the one they enjoyed together, however the wife is expected to make do with living with her parents.
The applicant cannot continue to rely on her parents whilst he continues to live in the matrimonial home. He has a duty to maintain the wife by virtue of their marriage until divorce, the advocate argued.
The husband’s advocate on the other hand submitted that the wife has not demonstrated any need. It is said that the wife has lived comfortably with her parents and must continue to do so.
It was submitted further that he has various business interests and can afford to contribute toward her legal costs in the amount of R300 000, payable over three months.
Regarding the husband’s hobbies in aviation and skydiving, the husband claimed that he no longer flies his planes. But the court noted that no log books to demonstrate flying hours, maintenance costs and the like regarding his hobbies, which are considered “large ticket” items in most budgets, were submitted to court.
While the husband claimed that he cannot afford to pay maintenance to his wife, the court was told that he recently went on an expedition to climb K2 on the border of China and Pakistan, with the average costs of this climb being between R500 000 to R700 000.
His evidence is that he obtained loans from his employer, other expenses were sponsored, and he took three months unpaid leave to finance his adventure.
It was argued on behalf of the wife that it cannot be fair that she, an adult, and a mother, has still to live with her parents. It was proffered that the wife tries to make do with shared living to meet monthly expenses to afford her child a comfortable life and a future.
Countering this argument, the husband’s advocate said the wife is using the law the obtain an “interim meal ticket” as she has been living comfortably with her parents since she had moved out from her matrimonial home.
The court considered the social status of the parties, including their lifestyles when they lived together. It said the wife’s need for housing lies not only in her ability to afford or source housing, but also fundamentally in her rights to dignity and in the husband’s reciprocal duty in our common law to maintain her.
Her delay in applying for her spousal maintenance cannot absolve the husband of his duty of support. The duty remains, until the marriage is dissolved, on death of a spouse or beyond against the deceased estate. The duty of support is gender neutral and either spouse has a right to claim support from the other, “depending on their means”, until the dissolution of the marriage relationship, the court concluded.
The husband was ordered to pay the wife R15 000 a month maintenance pending their divorce. He must also contribute R300 000 towards her legal fees.