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Article by Durban Divorce Attorney: Fawzia Khan

One of the things which can be claimed in a Rule 43 application is asking one spouse for a contribution towards the legal costs of the divorce. The reason why this is allowed is based on the premise that in South African law, both spouses owe each other a reciprocal duty of support, whilst they remain married to each other. As I have indicated in previous articles on the subject, a Rule 43 is an application which can only brought when there is a divorce underway. It’s a temporary order which falls away once the final divorce order is granted. The amount which the court can award towards a contribution of the legal costs is at the discretion of the judge.

In considering whether or not to make an order for contribution of costs, the court will look at the reasonable needs and financial means of the spouse claiming such contribution. This test which is also used when claiming for maintenance. The court will consider a spouse’s reasonable litigation needs, what is involved in the case, the scale on which the parties are litigating, or intend to litigate, and the parties’ respective means.

On 28 August 2019, Judge Davis ruled in a case heard in the Western Cape high court, where the wife asked for the court to order her husband to pay R750 000,00 towards her legal costs in the divorce proceedings. The husband earned a whopping R7 million a year, as well as received certain ad hoc payments from his company and substantial distributions from a trust of which he was a beneficiary. His wife on the other hand, owed no immovable property and said that since the parties separated, she earned a modest income.

The court acknowledged that an indigent husband could also claim support from an affluent wife. But the court also opined that in reality the traditional child-care roles and the wealth disparity between men and women, meant that it was usually women who made such applications. In granting the wife a substantial contribution towards her legal costs, the court said that if there was a marked financial imbalance to litigate, there was a real danger that the poorer spouse would be forced to settle for less. On the other hand, the spouse who controls the purse strings (usually the husband), is well able to deploy financial resources in the service of his cause. The right to dignity is also impacted when a spouse is deprived of the necessary means to litigate. The primary duty of support is owed between spouses, and a wife who is without means should be entitled to look to the husband, if he has sufficient means, to fund her reasonable litigation costs”.

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