N.S v M.F.S (20/27078) [2023] ZAGPJHC 1044 (19 September 2023)
Litigation History
- The Defendant represented himself, while the Plaintiff had legal representation.
- The Defendant filed 12 applications against the Plaintiff, most of which were either struck off or not pursued further.
- The Defendant’s self-representation led to complications in adhering to court procedures.
Defendant’s Legal Representation
- The Defendant initially chose to represent himself but hired an attorney on the first day of the hearing.
- The attorney failed to appear on time the next day, leading the court to proceed without him.
Claims by Both Parties
- Defendant’s Claims:
- Wanted residence of the children.
- Sought maintenance of R26,000 per month for himself.
- Wanted the Plaintiff to pay maintenance for both children.
- Requested 50% of the Plaintiff’s pension benefits.
- Plaintiff’s Claims:
- Sought residence of the children.
- Asked the Defendant to pay R2,500 per child for maintenance.
- Requested that the Defendant forfeit his share of her pension interest.
- Wanted the Defendant to pay the costs of the divorce action.
Issues for the Court
- Care and Contact of the children.
- Maintenance for the children.
- Division of properties and the joint estate.
- Costs of the divorce action.
Defendant’s Concerns
- Raised issues about access to justice and the use of CaseLines.
- Filed a notice for postponement, which was dismissed by the court.
Marriage and Separation
- Married in December 2015 and separated in May 2020 in community of property.
- Two children were born out of the marriage.
- The Plaintiff alleged emotional abuse and infidelity by the Defendant.
Assets and Income
- Three immovable properties were part of the joint estate.
- The Defendant cashed in his pension fund without informing the Plaintiff.
- The Plaintiff had a pension fund valued at R774,375.
Care of the Children
- The Plaintiff had been the primary caregiver.
- The Defendant had limited contact with the children and did not pay court-ordered maintenance.
Legal and Procedural Issues
- The Defendant’s attorney failed to submit Heads of Argument.
- The Defendant uploaded various documents without context.
Other Legal Matters
- Various charges like fraud, intimidation, and violation of court orders had been filed against the Defendant.
Legal Framework for Divorce Decrees
Section 3 of the Divorce Act delineates the legal basis for dissolving a marriage. Specifically, it states that a court has the authority to issue a divorce decree solely on the grounds of an irreparable marital breakdown, as further elaborated in Section 4 of the same Act.
Section 4(1) of the Divorce Act elaborates that a divorce may be granted if the court is convinced that the marital relationship has deteriorated to such an extent that there is no plausible chance of reestablishing a healthy marital relationship between the parties involved.
Judicial Guidelines for Divorce indicate that a court is mandated to terminate a marriage if it has ascertained that the marriage is beyond repair and there is no foreseeable opportunity for restoring a normal marital relationship. In making this determination, the court will consider both historical events and the current attitudes of the spouses towards the marriage. The term “normal marital relationship” is to be interpreted in the context of ‘consortium omnis vitae.’ If either or both parties engage in actions that compromise this consortium—such as infidelity, wilful abandonment, or abusive behaviour—then the marriage is deemed abnormal. Both objective circumstances and the subjective intentions of either or both spouses to end the marriage are taken into account. If even one spouse expresses the desire to terminate the marriage, the court is bound by law to issue a divorce decree, as a marriage cannot be salvaged without the mutual consent of both parties.
Judicial Precedent is unequivocal on this matter. If one spouse unequivocally wishes to terminate the marriage, the court is legally obligated to issue a divorce decree. In the case at hand, the Plaintiff has explicitly stated her desire to end the marriage. This despite the Defendant’s assertion that the issues could be resolved through religious counselling or familial intervention. Consequently, a divorce decree was granted.
Legal Guidelines for Spousal Maintenance
Section 7(2) of the Divorce Act provides explicit criteria that the court must evaluate when determining the necessity and amount of spousal maintenance post-divorce. These criteria include, but are not limited to, the current or future financial resources of both parties, their ability to earn income, their financial needs and obligations, age, the length of the marriage, the standard of living established during the marriage, and the behaviour of each party as it pertains to the dissolution of the marriage. Additionally, the court may consider any other factors it deems relevant in making its decision.
Case-Specific Considerations: In the present case, the Defendant had requested a monthly maintenance payment of R26,000 from the Plaintiff. However, the Plaintiff had disclosed that her net monthly income was approximately R33,000, with child-related expenses ranging from R8,000 to R9,000 per month, including school fees.
Defendant’s Earning Potential: The court was of the view that the Defendant could earn a salary should he find employment. During testimony, he stated that the only obstacle to him being employed was the various criminal cases that the Plaintiff opened against him. She subsequently withdrew the charges, and he obtained a clearance. On his evidence, the court was of the view that he should be employed relatively soon. During the divorce proceedings, he had not indicated how he got to R26 000, or how the Plaintiff would be able to afford that. In light of the parties’ relatively equal earning capacities, their needs and obligations, and their age, the court did not make an order as to spousal maintenance.
Court’s Decision: Given the relatively comparable earning capacities of both parties, their respective financial needs and obligations, and their ages, the court determined that no spousal maintenance order would be issued in this case.
Division of the Joint Estate
The overarching principle dictated that upon divorce, a spouse who was married in community of property could lay claim to half of the net joint estate. The court had the discretion to either integrate an agreement into the divorce decree or issue an order concerning the division of the joint estate. This could encompass the appointment of a liquidator to divide the assets or the estate itself.
After evaluating the arguments presented by both parties, it was established that the joint estate held a 50% ownership in the Danville property, which was fully paid off. The current valuation of this share amounted to R452,051. The Plaintiff resided in the house with her mother and children and expressed a desire to retain the property. In contrast, the Defendant was to retain the Loerie Park property, valued at R380,933.
Concerning the Rayton property, the Plaintiff proposed that the property either be sold, with the resulting profits and losses to be equally divided, or for the Defendant to assume ownership along with the responsibility of paying the bond. The Defendant, on the other hand, advocated for the sale of the property with all proceeds to be allocated to him. A judicious order in this context was to mandate the sale of the property, with profits and losses to be equally distributed. Both parties were obliged to collaborate to render the house saleable.
In relation to the division of pension interest, as per sections 7(7) and 7(8) of the Divorce Act, a spouse’s pension interest is considered an asset. This interest had to be factored into the calculation of the patrimonial benefits to which each party might be entitled upon the dissolution of the marriage.
However, section 9(1) of the Divorce Act empowers the court to order the forfeiture of patrimonial benefits that a party would not have otherwise acquired from the marriage. To issue such an order, the court has to be convinced that one spouse would be disproportionately advantaged in comparison to the other. In making this determination, the court considers various factors, including the length of the marriage, the causes leading to its breakdown, and any significant misconduct by either party.
Based on the evidence presented, which included the brief duration of the marriage, the Defendant’s liquidation of his provident fund without adequate explanation, his forgery of the Plaintiff’s signature on her bank statements, and the damage inflicted on her vehicle, the court concluded that the Defendant should forfeit his 50% share in the Plaintiff’s pension.
The Children
In deliberating on matters related to the children, the court adhered to the guiding principle of prioritising the child’s best interests. Section 7 of the Children’s Act has formalised a set of criteria that must be evaluated to ascertain what serves the children’s best interests, particularly in relation to their care and contact.
In light of the criteria outlined in Section 7, the following observations were made by the court: the children had been living with the Plaintiff, who had been attending to their daily needs. The Plaintiff received assistance in her caregiving responsibilities from her mother and sister. She also covered the school fees, irrespective of the Defendant’s lack of financial contribution towards maintenance. While the Defendant did maintain sporadic contact with the children, no evidence presented before the court persuaded the Judge that he was capable of providing day-to-day care or that the children should reside with him. Such an arrangement would also introduce complications concerning the children’s educational circumstances.
However, the Plaintiff viewed the Defendant as a competent father and suggested that he should have contact with the children on alternate weekends and during school holidays, in addition to reasonable telephonic communication. This proposal appeared reasonable, especially considering the relatively young age of the children.
Regarding the maintenance of the children, the Plaintiff delineated their needs, which she had largely shouldered herself. She estimated their monthly requirements to fall within the range of R8,000 to R9,000. She requested R2,500 per child, per month—a claim that was not substantially contested by the Defendant and appeared reasonable. She further proposed that the Defendant should contribute to 50% of all items identified as necessities for the children, as detailed in the particulars of the claim. This too seemed reasonable to the Judge.
Costs
The Defendant was afforded multiple chances to reach a settlement agreement with the Plaintiff but consistently declined to do so. On the Monday when proceedings were adjourned, the Defendant’s legal representative intimated a willingness to settle, yet failed to initiate contact with the Plaintiff’s attorney thereafter. The Defendant’s behaviour throughout the process was, at times, both questionable and obstructive. A series of applications were submitted, compelling the Plaintiff to issue responses. However, the Defendant seldom pursued the matter further once an answering affidavit had been submitted. The Plaintiff’s demands were not excessive or unreasonable. Consequently, the Judge was of the view that it would be unjust for the Plaintiff to shoulder the entirety of the legal costs and ordered the Defendant to Pay 50% of the Plaintiff’s costs.
Order
- A divorce decree was granted.
- Both parties were directed to maintain joint full parental responsibilities and rights for their children, J.N.O.S S and J.M.S.
- Primary care of the children was awarded to the Plaintiff.
- The Defendant was granted specific parental responsibilities and rights for contact with the children, including alternate weekends, public holidays, and school holidays, among other stipulations.
- The Defendant was instructed to contribute to the children’s maintenance, including a monthly payment of R2,500 per child, and 50% of various other expenses such as school fees, medical costs, and extracurricular activities.
- The Defendant was directed to forfeit certain patrimonial benefits, specifically related to the Transnet Retirement Fund.
- The Plaintiff was allowed to retain her 50% share in the Danville property.
- The Defendant was allowed to retain his 100% share in the Loerie Park property.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.