1: RULE 43 APPLICATIONS

Rule 43 of the High Court Rules allow for parties who are engaged in pending divorce proceedings to institute an application in the same Court for interim relief pertaining to aspects of parental rights and responsibilities, contribution towards legal costs for the divorce proceedings, and maintenance for a spouse.

In the matter of MM v BM [2018] JOL 39734 (FB), the court was tasked with amending an existing maintenance order from one relating to only the child born from the marriage to one including maintenance for both the wife and the child. The Court however did not view the matter as being one of variation but rather as being one of a completely new issue, being that of maintenance for the spouse. The Court noted that the husband did not object to the reasonableness of the wife’s expenses but his sole defence was that he was unable to afford payment in the sum of R3,000 in addition to his current financial commitments. After scrutiny of the husband’s finances, it was determined that he was able to accommodate payment of this sum into his monthly budget. The Court was also tasked with determining whether or not it prejudice the husband to provide a motor vehicle to the wife, where it concluded that it would prejudice him and thus declined to make the order. The Court was also tasked to determine the reasonableness of the wife’s request for contribution towards her legal costs. Based on the submissions made her legal team, the amount requested was R10,000 which the Court found both unaffordable to the husband and unsubstantiated. The Court however made an order that the husband pay R5,000 towards the wife’s maintenance.

In the matter of E v E (1921/2018) [2018] ZAECPEHC 31 (28 June 2018), the Court was tasked with hearing an application brought by the wife for relief which included maintenance for herself and for the child in the sum of R16,000 plus specific payments to third party suppliers, and a contribution towards legal costs in the sum of R112,500. The parties were married in community of property. The wife’s and husband’s respective incomes were largely undisputed, so too were the aspects of capital available to each spouse. The first dispute with respect to the maintenance was the apportionment of responsibility. The husband’s legal team averred (presumably because the parties were married in community of property) that maintenance at this level is considered on an equal distribution, whereas the wife’s legal team averred that maintenance apportionment is allocated in accordance with the respective means of the spouses. The Court concluded that maintenance is “determined on a proportional basis, having regard to the respective earnings of the Parties.” The second dispute with respect to the maintenance was on the aspect of reasonableness and necessity of repayment of a loan advanced by a family member for the purposes of interim maintenance. The Court considered this aspect and was of the view that a liability of this nature stands on the same footing as a loan of the joint estate because “since the obligation is a joint liability of the joint estate… it must be brought into account.” Lastly, the issue of legal costs contribution was considered. Based on the Court’s view that the matter did not necessary involve “very difficult or complex questions,” the Court ordered a reduced sum to be paid by the husband towards the wife’s legal costs. The Court remarked that “should the ambit of the disputes expand to require further necessary preparation, then in that event, the [wife] may be entitled to approach the Court for a further contribution towards costs should same not be provided by the [husband].”

2. UNIVERSAL PARTNERSHIPS:

This aspect of law is growing substantially with more and more people opting to rather cohabit with one another than to formalise a legal marriage. Universal Partnerships, if proven and specifically to the sphere of Family Law, has the same effect on the sharing of property as that of a marriage in community of property.

The matter of Booysen  v Stander (19122/2014) [2018] ZAWCHC 80 (27 June 2018) involved a same-sex couple whose relationship (after 17 years together) had become irreconcilable and the Parties separated. The Plaintiff sought termination of joint ownership of an immovable property which they both owned, repayment of a loan, and return of a motor vehicle to the Plaintiff that was being used by the Defendant. The Defendant counter-claimed an order declaring that a universal partnership (“UP”) existed, that the UP be terminated, and division of the estate therefrom. The Plaintiff was of the view that she made all financial contributions towards the immovable property and it would be unjust for the Defendant to share equally in any proceeds from the disposition of same. The Defendant, however, averred that her contributions came in the form of assisting in maintaining the common household. No formal agreement existed between the Parties with respect to repayment of any monies paid by either on behalf of the other. In considering the two claims, the Court made reference to Pezzuto v Dreyer [1992] ZASCA 46 which described the elements of what is otherwise termed “a special contract of partnership” as being: each party brought something into the partnership “whether it be money, labour or skill,” there is joint benefit for the Parties, the object was to make a profit, and that the agreement was legitimate. After considering the evidence, the Court concluded that a special contract of partnership existed between the Parties which is relevant to the legitimate forming of a UP. The argument proffered by the Plaintiff is too narrow and appears to be have been considered “in a vacuum” without taking into account all facts pertaining to the nature of their relationship. The Court therefore rejected that the Parties intended to effect a joint ownership of property (as per the action communi dividundo). When considering the existence of a UP, it was patently clear to the Court that the Parties “pooled their resources together for the benefit of the joint estate.” The reasoning is as follows:

“Because they were both fully committed to the relationship, they each gave what they could. To put a rand value to each one’s contributions would, in my view, be tantamount to diminishing the value of their individual contributions. The manner in which the parties conducted their affairs fits with the concept of universal partnership which describes a state of affairs between parties who meet the requirements of a partnership: contribution by both, to the benefit of both and for the purpose of making a profit. Consequently, I am satisfied on a balance of probabilities that a universal partnership came into existence between the parties.”

The Plaintiff’s claim therefore was deemed unsustainable “as it is near impossible to untangle the threads of interwoven narratives of life partners, which have layered complexities akin thereto in the advancement of a joint household.” The Court declared the existence of a UP, made an order for it to be terminated, and made an order with respect to the specific relief requested in the way of division.

Aleisha Oliver

3 July 2018