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ZKM v VAM [2023] ZAWCHC 2

WILLE J

17 January 2023

FAMILY – Maintenance – Variation – During acrimonious divorce proceedings – Husband having reduced income, used up capital reserves and dependent on family and friends to supplement income – Wife has savings, disposable assets and income from a trust – Maintenance varied with order catering for whether or not wife and child vacate former matrimonial home.

Facts: The parties were married with an ante-nuptial contract, including the provisions of an accrual regime. They have a child who is nine years old. The plaintiff is the wife who is pursuing her claim against her husband without legal assistance. The husband has tendered an immovable property to the wife, maintenance for the child and rehabilitative maintenance for the wife for one year. The wife seeks R100,000 per month for herself, for the rest of her life, and R50,000 per month towards the maintenance of their child. This maintenance is in addition to the minor child's education and medical expenses.

Application: The husband seeks a variation of an extant court order. In terms of the previous order he has been paying R50,000 a month plus various school and other expenses.

Discussion: The contentions by the husband that he recently lost his employment with a significant state-owned entity and mainly relies on borrowings from family and friends to move his divorce matter forward to reach finality; that the wife refused to vacate the matrimonial home so he is unable to rent it out; that this home was registered in the name of a discrete company which is in difficulties and that the husband has offered her another home; and the contention by the husband that his expenses are more than twice his current earnings.

Findings: In contrast to the husband, the wife has savings, disposable assets and derives income from a trust. Under these circumstances, the appropriate order is to grant a reduction in the interim financial relief and that the costs stand over for determination at the trial action. This case is manifestly distinguishable from the facts in the oft-quoted case of L v L [2022] ZAGP JHC 396 which formulated the enquiry when dealing with allegations of changed circumstances.

Order: If the wife remains in the matrimonial home, the husband shall pay R25,000 per month for the wife and child as well as the child’s school and medical expenses. Alternatively, if the wife and child vacate the matrimonial home, the husband will pay rental of R35,000 per month, maintenance of R35,000 per month for the wife and child, as well as the child’s school and medical expenses.

WILLE J

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