K.F v M.F (10237/2037; 4001/2023) [2023] ZAWCHC 253 (13 October 2023)
The Facts
The was an application in terms of Rule 43 of the Uniform Rules of Court, focusing on interim maintenance and financial contributions towards the divorce proceedings.
The couple had tied the knot back in August 1992 and had been living separately since March 2022. The divorce proceedings were initiated by the applicant in March 2023. They were parents to four children, the youngest of whom was 18. The children’s maintenance was not a point of contention in this application. Educationally, the applicant had an honours degree in psychology and was on the cusp of completing her PhD. She had chosen not to engage in professional work since 1997, dedicating her years to the children’s upbringing. The respondent, as the primary breadwinner, was a co-founder of a prominent Coffee Company. The full extent of his assets and wealth became a matter of dispute. The court acknowledged that the respondent’s monthly earnings exceeded R285,000.
Throughout their marital years, both enjoyed a comfortable lifestyle. The applicant sought a monthly maintenance of R96,925.00, inclusive of allowances such as medical aid and a phone contract. In addition, she requested provisions for yearly travel and certain lump sum amounts, addressing relocation and housing costs. As it stood, the respondent was already paying R80,488.36 monthly. Furthermore, the applicant sked for a contribution of R475,000 to cover past legal expenses and another R555,000 projected for upcoming costs.
In 2022, a decision was made to mediate informally, facilitated by a mutual friend with legal expertise. During this mediation, the applicant presented an estimate of her monthly expenses, totalling R70,950. But her affidavit in the Rule 43 proceedings conveyed some ambiguity regarding this schedule.
Supporting his claim, the respondent showcased an email from the mediator that circulated the schedule ahead of a forthcoming discussion. He had also formulated a response to the applicant’s expenditure breakdown, offering his insights and recommending a monthly maintenance of R59,950.
From the documentation available, it appeared that the initial schedule was indeed drafted by the applicant, encapsulating her anticipated monthly expenses. Although the respondent initially countered with a lesser amount, he later agreed to a monthly payment of R70,000.
Progressing to January 2023, the applicant introduced an updated financial plan, which highlighted her monthly expenses as R110,869. But this new figure included costs not typically considered daily necessities. When these were discounted, the sum was closer to the earlier figure of R70,000. By March 2023, another revised plan was presented, quoting a monthly need of R128,298.69, marking a significant increase from her previous estimates. Several items in this list, like a hefty R15,000 for personal care and a significant grocery budget, appeared inflated.
The Court’s Views
Upon reviewing the application, it was clear to the Judge that the final financial schedule seemed exaggerated and did not reflect the applicant’s legitimate maintenance needs. In assessing the third schedule, it appeared to be significantly overstated, deviating from the applicant’s actual necessities.
It was noteworthy that the respondent’s monthly household expenditures (excluding legal fees and bond payments) came up to R109,551. This was while accommodating two of his adult offspring. This lent weight to the argument that R70,950 should have sufficed to sustain the applicant’s accustomed lifestyle.
Beyond the proposed monthly sum of R70,950, the Judge was of the view that it was deemed that the following provisions were reasonable and just for the interim period:
The applicant remained a beneficiary of the respondent’s medical plan. Moreover, the respondent was expected to cover any medical expenditures not addressed by this health insurance.
The respondent was to continue funding the applicant’s mobile phone contract.
Certain overheads linked to the applicant’s residence, such as levies, household insurance, internet charges, and municipal taxes, were to be borne by the respondent.
The respondent was also to cover specific expenses related to the Volkswagen Beetle, which included its insurance, annual licensing, and upkeep costs.
The applicant had put forth a claim regarding the salaries of domestic workers stationed at a vacation property. Nevertheless, the respondent clarified that he directly shouldered these expenses. On a related note, the applicant sought continued access to this holiday residence. The respondent assured that her accessibility to the property was never contentious.
The applicant’s claim encompassing considerable local and international travel expenses seemed misplaced for the interim period. The judge noted that Rule 43 was not designed to cater to such extravagant demands. The monthly maintenance allowance of R70,950 should have adequately covered her domestic flight costs between Cape Town and Johannesburg occasionally.
In her application, the applicant outlined expenses nearing R300,000 linked to her residence at Unit 6[…], F[…]. These costs covered the acquisition of various items like a sofa, a stove (along with its installation), a TV set, bedroom closets, and an alternative power solution, collectively amounting to R214,241. Additional costs were attributed to relocation and settling (R40,224), and fees for contractors hired for renovations post her move (R42,737).
In the case of Greenspan v Greenspan 2000 (2) SA 283 (C), the court had concluded that it did not possess the authority to approve lump sum payments in Rule 43(1) applications, similar to those claimed in this matter. Consequently, amounts claimed for furniture acquisitions were denied.
The applicant’s counsel had astutely observed that the Greenspan decision was influenced by the Full Bench judgement in the case of Zwiegelaar v Zwiegelaar. In that situation, the court had determined that it lacked the power under section 7(2) of the Divorce Act 70 of 1979 to order what essentially were lump sum maintenance payments. However, the Zwiegelaar judgement was subsequently reversed by the SCA, which established the competency of the trial court to grant a sum for household necessities after an individual’s removal from a shared residence. Drawing from this, applicant’s counsel essentially argued that the Greenspan precedent was outdated and should be disregarded.
However, reservations existed regarding this perspective. The Greenspan judgment addressed an interim maintenance claim under Rule 43, while the claim in Zwiegelaar pertained to a “final” maintenance order under the Divorce Act’s section 7(2) – effective till the appellant’s passing or remarriage.
While the Greenspan judgement had referenced the Zwiegelaar ruling, it emphasised other factors in a Rule 43 application that suggested against granting lump sum payments for the interim. The intention of Rule 43 was highlighted as a mechanism to provide swift, cost-effective relief.
Another consideration was that Rule 43(6) allows for the variation of maintenance orders in case of changed financial circumstances. This hinted that one-time or lump sum maintenance payments might not have been envisioned under Rule 43, given they could not be adjusted after payment.
Importantly, the ruling in Greenspan remained authoritative and directly relevant (despite the SCA’s judgment in Zwiegelaar). Given the Greenspan decision, the applicant’s lump sum claims, especially for furniture and fixtures, as well as relocation and renovation costs, seemed not permissible.
Even with a different stance on this matter, awarding these amounts to the applicant could have been debated, especially considering the substantial payments (around R800,000) the respondent had already committed to the applicant’s relocation and initial set-up after their marital split. Regarding the applicant’s claim for cost contributions, while it was recognised that the applicant deserved some assistance, the exact amount remained a point of contention.
Guiding principles for the court’s discretion in sanctioning cost contributions were delineated by Ogilvie Thompson J in Van Rippen v Van Rippen and further expounded upon by Binns-Ward J in A.L.G v L.L.G.
The applicant had presented a claim of R475,000 for current costs. Upon examination, a significant portion of these costs, exceeding R100,000, was linked to the Rule 43 application, and the Judge was of the view that such costs were not claimable under Rule 43. The respondent had documented costs of around R290,000 up to that point in the divorce proceedings. Though the applicant had disputed this, it remained as a point of contention. A sum of R290,000 according to the Judge seemed a reasonable contribution towards the applicant’s past expenses. Looking ahead, the applicant had proposed R555,000 for future expenses. This estimation appeared somewhat inflated. The main disputes centered around the accrual quantum and the quantum of the applicant’s spousal maintenance.
Granting R290,000 for the applicant’s anticipated future costs, double her past reasonable divorce costs, seemed a balanced decision. In total, an allocation of R580,000 was deemed sufficient for the applicant to adequately present the case in court. The applicant sought an amount up to R35,000 plus VAT to cover the fees of an industrial psychologist, aiming to evaluate her potential income capacity. This was deemed logical, as her employability would be a contested issue in the impending divorce.
The Court’s Order
The court’s order comprised:
- The respondent was instructed to:
- Pay the applicant a monthly maintenance of R70,950 from 1 June 2023, adjustable each year based on the CPI for the middle-income group.
- Cover the applicant’s medical expenses, ensuring she remains a beneficiary on his medical plan.
- Maintain and periodically upgrade the applicant’s cell phone contract.
- Pay specific costs related to the applicant’s accommodation, including levies, municipal rates, insurance premiums, and internet subscriptions.
- The respondent was to ensure the applicant’s continued use of a Volkswagen Beetle, covering its associated costs like licensing, insurance, and maintenance.
- The applicant was granted permission to use the holiday home.
- The respondent was directed to contribute:
- R290,000 towards the applicant’s past legal costs, payable within 30 days to the trust account of her attorneys.
- R290,000 for future legal costs in the same manner.
- Up to R35,000 (plus VAT) for the fees of an Industrial Psychologist.
- Costs related to this application were to stand over.
Pitfalls of the Applicant’s case
Inflated Monthly Expenses: The applicant presented multiple schedules with estimates of her monthly expenses. The second schedule showed a significantly increased estimate, and the third schedule was even higher. The judge found several items in these schedules that were not considered daily living expenses, such as life insurance, savings, share investments, pension fund, children’s expenses (especially given that none of the children lived with the applicant), and staff costs for a holiday home. When these items were excluded, the total reverted to a much lower figure.
Confusion Over Initial Schedule: There was ambiguity in the applicant’s sworn statement about the origin of the initial schedule of expenses. She both suggested it was introduced by the respondent and described it as her own attempt at summarising her costs.
Excessive Claims: The amount claimed in the third schedule was seen as excessive. Specific claims, like R15,000 for personal care and nearly R20,000 for groceries for one person, were highlighted as extravagant. There were also claims for renovations to her new apartment, which the respondent had not approved.
Claims for Luxurious Expenses: The applicant’s claim for costs related to local and international travel was deemed inappropriate for an interim maintenance application. The judge believed that the monthly maintenance amount should cover domestic airfares.
Claims for Lump Sum Payments: The applicant claimed various amounts for items like furniture, renovations, and relocation. The judge referenced the case of “Greenspan v Greenspan”, which held that courts had no power to award lump sum payments under Rule 43. This made the applicant’s claims for such payments not competent.
Amount Claimed for Legal Costs: The amount claimed by the applicant for past legal costs was substantial. However, a significant part of these costs was related to the Rule 43 application, which could not be claimed under Rule 43. Additionally, the applicant’s claim for future costs in the divorce action was seen as excessive given the issues at hand.
These points highlight the discrepancies and concerns raised by the judge in relation to the applicant’s claims and actions.
A Note to Legal Practitioners
In the realm of family and divorce law, the intricacies of presenting a case can sometimes be overshadowed by the emotional and personal nature of the disputes. Yet, as legal practitioners, it is paramount to avoid certain pitfalls that can compromise the integrity and success of a case.
One such pitfall is the presentation of inflated or inconsistent financial claims. As seen in this application, presenting multiple schedules with escalating monthly expenses can cast doubt on the authenticity of the claims. It is essential to ensure that any financial estimates provided are accurate, consistent, and justifiable. Inaccurate or exaggerated claims can not only weaken the applicant’s case but can also negatively affect his/her credibility in the eyes of the court.
Furthermore, ambiguity or inconsistencies in sworn affidavits can severely undermine a case. It is crucial to ensure that all affidavits, especially those related to finances or assets, are clear, consistent, and devoid of contradictions. Proper examining of such affidavits before submission can prevent potential discrepancies that might be exploited by the opposing party.
Another area of concern was the claiming of luxurious or non-essential expenses in interim maintenance applications. While it is understandable that applicants might wish to maintain their pre-divorce lifestyle, it is important to differentiate between necessary living expenses and luxury or discretionary items. Claims that appear excessive or unreasonable can detract from the genuine needs presented in the case.
Lastly, legal practitioners should be acutely aware of the limitations set by legal precedents. Before making claims, especially those involving lump sum payments or specific costs, it is essential to be well-versed in relevant case law. Ignorance or disregard of binding decisions can lead to claims being dismissed on the grounds of incompetence.
In conclusion, while the personal and emotional aspects of family and divorce law can be challenging, maintaining a rigorous, consistent, and informed approach is key. By avoiding these common pitfalls, legal practitioners can better serve their clients and uphold the standards of the profession.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.
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