Always a significant issue in a divorce case are the legal costs and who must pay. The truth is that if one spouse is unemployed and the other the major breadwinner, the breadwinner at the end of the day will have to pay the costs of both sides, or at least contribute thereto.
I had a case recently where my client resided in Port Elizabeth and his wife in Cape Town. She summonsed him out of the Cape Town Southern Divorce Court for a divorce. His wife’s Attorney however appeared to be acting for a family member and did not ask her for a deposit.
My client was the only one working and had sufficient funds to pay us a deposit so that we could instruct an Advocate. His wife’s Attorney was desparate, as the trial was two weeks away and she also wanted funds to instruct an Advocate.
So two weeks before the trial, a Notice of Motion was served on our offices asking our client to contribute R40 000 towards her legal fees. I could not attend Court that day as I had a matter in another Court, but instructed a top senior Advocate to rigorously oppose the Court Application.
I had phoned the other Attorney a few days before the Application asking for a postponement. From an ethical view-point she should have agreed to that as Attorneys should really discuss dates beforehand with their colleagues but she insisted that her instructions were to go ahead that day and fight for costs.
The Southern Divorce Court is a lower Court than the High Court and operates on a different fee tariff to the High Court. The Southern Divorce court basically operates on the same fee tariff as that applied in the normal Magistrates Court.
My instructions to our Advocate were to argue that the R40 000 costs prior to the trial were highly excessive in this particular forum . She further argued that this costs order would be more appropriate if the matter were being heard in the High Court.
As per my instructions our Advocate started off by offering a R5 000 contribution towards their costs. We argued that if they wanted to appoint an Advocate for the trial, a cheaper Junior Advocate would be sufficient, as this was only a Southern Divorce Court matter.
The other side no doubt argued that our client could afford at least R20 000 towards their costs and that that was not unreasonable. They argued that it would be in the interests of justice that at least R20 000 was paid, as then both parties would be equally represented at the trial.
In the end the Court decided that my client contribute R10 000 towards his wife’s legal costs. This was a good result for my client, as it was way less than what they originally asked for.
Legal costs in divorces is always an interesting point of argument. These days the competition is so fierce that Attorneys are launching more and more Applications for costs prior to the trial to ensure that their client gets the best possible representation at the trial.