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Financial disclosure & family support

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The importance of full financial disclosure of your spouse's financial position in divorce matters – Rule 43 Applications & Maintenance Applications – and the involvement of family members.

It often happens in divorce matters that parties are forced to seek for financial assistance from family members and/or other sources. For example a couple that already has a low level of income, and there are problems in their marriage, one party may be forced into a situation where they must now live with a family member and rely on that person’s support with the children.

I had a case recently where in a Rule 43 application the Judge mentioned the importance of family help. In a case for example where a woman is claiming maintenance from her husband, and both parties only earn R10 000 per month, the court cannot make an order of for example R5000 maintenance per month for the child, where the breadwinner can only afford for example to pay R1000 per month. The Court would be of the view that unfortunately that party may have to fall on family members for help financially.

A good support system is also very important in a divorce matter when it comes to not only the financial side of things, but also when it comes to looking after the children. It is very tough to be a single parent, and sometimes you may need a hand from your family members to help fetch the children from school or take them to a doctor when you are at work. Unfortunately not all people have a good family support system and then have to make do.

It is very important in a divorce matter to be aware of your spouse’s financial position also. A Rule 43 application for example would be dismissed if on your application proper evidence is not given on your spouse’s financial position. In the application one simply cannot ignore the financial position of their spouse.

It is very important in a divorce matter to do your homework and at all times be aware of your spouse’s financial position.  If you do not do this, it could seriously count against you in a rule 43 or a maintenance matter.

If for example you make no mention in your Rule 43 application that your spouse is spending R5000 per month paying off for a motor vehicle, and in their opposing Rule 43 affidavit they mention paying this instalment, your legal counsel cannot argue that this is an unnecessary expense that can be cut out so that more maintenance can be paid. The Court would be of the view that this was not mentioned on the papers, and that now a point cannot be raised against it. In a Rule 43 application each legal counsel is usually given 10 minutes to argue their case. The problem is that if your papers are not correctly drafted and no mention is made of the other party’s financial position, the application may be dismissed.

Even though the courts try to protect the interests of the minor child as much as possible when it comes to maintenance, they also do take into consideration when the party who is meant to pay maintenance does not have sufficient income. The Court would then be of the view that rather than making an award which that party cannot afford to pay, they will make a lower award, and advise the party who is looking after the child to make do and urge that party to look for help from other sources like family members.

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