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Award of little or no maintenance

 

I often hear at rule 43 applications that the wife should be entitled to no maintenance whatsoever, or little maintenance.  In one of our recent rule 43 applications, mention was made in the court of the decision of MCE v JE (13495/2011) [2011] ZAGPPHC 193 (14 September 2011). 

In this opposed rule 43 application, the applicant claimed maintenance for herself in the sum of R10 000.00 per month, that she be re-registered as a dependent on her husband’s medical aid, and a contribution of R10 000.00 towards her legal fees.  This no doubt would only be pendente lite (pending finalization of the divorce). 

Generally speaking the courts look at certain factors, and are prepared to award little or no maintenance at all where one or more of the following factors are present:

  1. The woman is young or reasonably young;

  2. She is well-qualified;

  3. She has no children;

  4. She has worked throughout her married life and/or is working at the time she applies for maintenance;

  5. She is in good health;

  6. The marriage was not of long duration.

In the above case the Judge referred to the decision of Kroon v Kroon 1986 (4) SA 616 (E).  In the Kroon case the court mentioned three principles in allowing maintenance.  The court stated that if a woman can support herself, no maintenance should be awarded.  Secondly the Judge stated that the aim of the court should be to award a “clean break” between the parties post-divorce.  The third principle the court looked at in the Kroon case was that of “rehabilitative maintenance”.  Such maintenance should be awarded for a certain period of time to support a person while they are being trained for a job. 

In the present case of MCE v JE the court found that the applicant had not been a housewife, there were no minor children, being 28 she was still very young, and that she was also employed.  The applicant had furthermore not proven any facts as to why she should be awarded rehabilitative maintenance post-divorce.

As far as the costs in the sum of R10 000.00 are concerned, the court found that the applicant had not properly given the basis for asking for costs.  She did not show on her papers how the R10 000.00 was arrived at, what unpaid costs had already been incurred, the project amount up to and including the first day of trial, etc.  The Judge stated that the applicant could have presented the court with a draft bill of costs or a summary of fees schedule.

The court in the MCE v JE case, when discussing the costs aspect, referred to the decision in Van Zyi v Van Zyi 1947 (1) SA 251 (T).  In this case  the court found that to succeed with a costs application, the applicant must set out sufficient facts which established by her at the trial on the hearing of the evidence would justify a court in granting an order for restitution of conjugal rights.

The end result of the case of MCE v JE was that the application for interim maintenance and a contribution towards costs were dismissed.  The court did however order the respondent to re-register the applicant on his medical aid scheme and to pay all excesses not covered by the medical aid scheme.

 


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