Husband must pay divorce costs

IN yet another judgment where a husband must cough up for his estranged wife’s legal proceedings in fighting the divorce, a man was this week ordered to contribute R108 000 towards her legal costs.

This is apart from also paying her a hefty amount in maintenance towards herself and their two children, pending the final say by the divorce court.

While the husband told the Johannesburg High Court that he was not a man with huge financial means, due to the economic crunch brought about by Covid-19, the court said he earned more than R96 000 a month and should thus dig into his pocket.

Acting Judge SDJ Wilson pointed out that the man’s wife, a Spanish citizen, was highly qualified but could not continue with her career when she followed him to South Africa.

She had to swop her career to become a housewife during their marriage. To make matters worse, the husband was refusing to allow her to return to her country of birth with their children.

In a judgment delivered two years ago in a similar matter, the Constitutional Court remarked that “it is an inescapable fact of modern life that marriages often end in divorce”.

That court at the time pointed at Statistics South Africa, which recorded that courts granted 25 326 divorce orders in 2016.

Of these, 55% involved children under the age of 18 years.

In most divorce cases, one of the parties approaches the court to adjudicate upon an application in terms of rule 43 of the Rules of Court. This is for interim financial relief, pending the finalisation of the divorce.

The Constitutional Court remarked that these applications are almost invariably women who, as in most countries, occupy the lowest economic rung and are generally in a less favourable financial position than their husbands.

“Black women in South Africa historically have been doubly oppressed by both their race and gender. The inferior economic position of women is a stark reality. The gender imbalance in homes and society in general remains a challenge both for society at large and our courts,” the apex court said.

It added that it was women who were primarily left to nurture their children and shoulder the related financial burden.

“To alleviate this burden our courts must ensure that the existing legal framework, to protect the most vulnerable groups in society, operates effectively,” it said.

In the case before Judge Wilson, the Spanish wife married her husband in 2008, and then moved with him to South Africa in 2012.

Although she has degrees in business administration, she has no right to work in South Africa. For a time she had a critical skills permit, but that expired.

Despite a series of efforts to obtain employment she has not been able to advance her career outside the marital home since she moved to South Africa. Her primary occupation has been as a caregiver to the parties’ two children, and as a home-maker.

They separated in 2017 and while the divorce is still pending, the wife is staying in the marital home with the children.

The wife turned to court to ask for maintenance and a contribution towards her legal costs, as she has no means of income.

The judge remarked that while the wife lacks a regular or dependable income, her husband is a successful management consultant, who earns at least R96 000 a month.

Judge Wilson said as the Constitutional Court earlier remarked, these applications are “almost invariably” women, who have forgone the opportunity to secure independent means because they have devoted themselves to making a home and raising children.

“The assumption of this role is often driven by powerful social expectations about the role women ought to play within the family, and the limits of what they can expect to achieve outside it, at least for so long as they have young children.”

The judge said in this case, it seems clear to him that the wife subordinated her career prospects to the needs and interests of her family by moving, with her husband to a country in which both he and she knew it would be difficult for her to seek work.

Apart from contributing R108 000 towards her legal costs in the divorce, maintaining the house in which she stays and paying the children’s medical and school bills, the husband must also pay her R24 456 a month.