Divorce Attorney Cape Town

Divorce – will your standard of living determine your maintenance? – The Van Der Westhuizen Case



Divorce – will your standard of living determine your maintenance?

Van Der Westhuizen v Van Der Westhuizen [2011] ZAGPPHC 30

 The facts

In a counterclaim during their divorce trial, the wife, claimed maintenance in the amount of R 68 794 per month. She also claimed a resettlement allowance of R3 million alternatively an order directing  Mr. Van Der Westhuizen to contribute to the cost of  her accommodation in the sum of R25 000 per month, escalating at 10 % per annum, plus an order that he pay to her the sum of R500 000 to enable the her to purchase the necessary furniture and household appliances for the her new accommodation. At the commencement of the hearing her counsel informed the court that she seeked only an order that her husband pay maintenance her in the sum of R44 502, alternatively, R42 102 per month and the sum of R500 000 to enable her to purchase the necessary furniture and household appliances for her new home.

The following issues had to be decided by the court:

  • whether the husband should be ordered to pay maintenance to the his wife; and if so;
  • what amount is to be paid to enable the wife to purchase household necessaries in order to establish a new home; and
  • what amount is to be paid to the wife in equal monthly payments to enable her to support herself.

For about 15 years of the marriage Mr. and Mrs. Van Der Westhuizen lived in two very large luxurious houses in the affluent suburb of Waterkloof, Pretoria. These houses had just about every conceivable facility and no expense was spared in the design and finishes of the houses and the interior decorating. They were also accustomed to dining out at least two to three times a week, usually at Italian restaurants or steakhouses. The couple also traveled overseas once a year and when they did flew business class. They also had a month holiday at the sea every Christmas. The husband owned a luxurious seaside home at Port Alfred where the members of the family would get together.

During the trial the wife listed the events under which it was assumed that her husband committed adultery with a certain Mrs. de Beer. Her husband had also paid R28 000 for Mrs. de Beer to have a breast augmentation procedure performed and despite his denials that he was involved in a relationship with her prior to 15 November 2008 the most plausible probable inference was that he was involved with her. Apart from paying for the breast augmentation procedure for Mrs. De Beer Mr Van Der Westhuzen insisted that this be kept from his wife. Mrs. Van Der Westhuizen was prepared to forgive her husband and to continue with the marriage despite his adultery and despite the fact that he was in a relationship with another woman.

 The Law

When a court has to make an order for spousal maintenance by the one party to the other, the court may take into account the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to divorce, their conduct insofar as it may be relevant to the break-down of the marriage and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given.

In terms of section 7(2) of the Divorce Act the trial court has very a wide discretion to determine the question of  spousal maintenance requirements – see Beaumont v Beaumont 1987 (1) SA 967 (A) at 987E; Katz v Katz 1989 (3) SA 1 (A) at 11A-C and Swiegelaar v Swiegelaar 2001 (1) SA 1208 (SCA).  The court is not only limited to make an order for equal monthly instalments. The court may also order payment of an initial amount to enable a party to purchase household necessaries to establish a new home – see Swiegelaar v Swiegelaar supra paras 12-15. The court must conclude that in the light of all the relevant factors (i.e. those specified in the subsection as well as any other which, in the opinion of the court, should be taken into account) it is just for the order to be made – see Buttner v Buttner 2006 (3) SA 23 (SCA).

Before the commencement of the Divorce Act it was said that no maintenance will be awarded to a wife who is able to maintain herself and that a wife cannot expect to enjoy, after divorce, the same standard of living that she had as a married person. However it is clear from the factors enumerated in section 7(2) and the wide discretion which is conferred on the trial court that it is not bound to refuse a wife’s claim for maintenance simply because she can support herself – see Nilsson v Nilsson 1984 (2) SA 294 (C) ; Rousalis v Rousalis 1980 (3) SA 446 (C); Grasso v Grasso 1987 (1) SA 48 (C); Pommerel v Pommerel 1990 (1) SA 998 (E) and that the court may award her maintenance that will give her the same standard of living. It will always depend on the facts and circumstances and what the court considers to be just in the light of these facts and circumstances. In this regard it is significant that the factors to be taken into account are not listed in any order of importance and that there is no indication of the weight to be attached to each of these factors. The court is free to have regard to any other factor which, in its opinion, ought to be taken into account in coming to a just decision.

The court ordered Mr. Van Der Westhuizen to pay R 35 000 per month and R 275 601 within 10 days of the order

A party in pending divorce proceedings is also able to claim interim maintenance pending the divorce by way of Rule 43 of the High Court Rules. In addition to claiming maintenance the application can also be used  to protect a party who doesn’t see his or her children as much as he or she wants. In the Rule 43 you can ask the court for an order entitling you to spend more time with your children and be awarded more contact rights to your children than you are currently being allowed.

In 2010 this came up in another divorce matter in the divorce of an ex South African rugby player Joost Van Der Westhuizen  and well known singer Amor Vittone. Her husband was seeking more contact to his children and a Rule 43 application was brought to court for this.

According to media reports in the You magazine of 28 October 2010, him and Vittone had not lived together as husband and wife for 18 months.  Accordingly You reported that,  Van Der Westhuizen had his minor children with him every second weekend, and also often had them with him in the afternoons when he fetched them from school and then dropped them off afterwards at their residence with their mother. Van Der Westhuizen approached the court to vary the  arrangements and wanted more contact to the children. According to the reports, his spouse contended that the contact  exercised was sufficient.

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