ZELDA VENTER
The Gauteng High Court, Johannesburg has firmly rejected the demands of an unemployed woman seeking interim maintenance from her divorcing husband while living with her lover, who provides her with financial support and credit cards.
The court said it would be contrary to justice and equity and would further be against public policy for the woman to be entitled to collect support from her husband, as well as from her “putative” second “husband”.
The woman turned to court after her husband stopped paying maintenance pending the finalisation of their divorce.
He reasoned that she is now being taken care of by her lover, who provides her with everything she needs and he thus no longer needs to provide for her.
The woman also wanted her husband to contribute towards her legal fees regarding their divorce proceedings. She said her parents and her lover have up to now paid for her legal fees but stated that she will have to pay them back at some point.
The court once again put its foot down and said at this stage it seems as if her legal fees are being adequately covered.
The couple was married in 2008 and have two children, who are financially being taken care of by the husband.
In January 2022, the wife and children moved out of their home and into a rental home. At that stage, it was agreed that the husband would pay maintenance to both the children and the wife.
Apart from this, he also agreed to pay the wife’s other expenses, such as her phone and the expenses relating to the BMW X3 car she drives.
According to the wife, she and the children moved in with her boyfriend in November 2023, and her husband from then on only paid the children’s expenses.
The wife, a British national, stated that she is unemployed and is now completely financially dependent on her partner.
She acknowledged that she and the children are living there for free, that he from time to time deposits money in her bank account, and that she does have use of his credit cards.
But she argued that pending the divorce, her husband has a financial obligation towards her, especially in light of their agreement.
Acting Judge F. Marcandonatos, however, said: “Our courts have long held that it is improper for a man to be expected to maintain a woman living with another man, as ‘man and wife’.”
The judge added that in this matter, it is common cause that the applicant (wife) is living with another man for some time now.
The judge referred to the book “The South African Law of Husband and Wife,” in which it is stated: “...the wife cannot claim arrear maintenance from her ex-husband for the time during which she was for all appearances another man’s legal wife or, at least, for the time during which she was in fact supported by him.”
Judge Marcandonatos found that while the lover has no obligations towards the children’s expenses, and where he is up to now willing to foot the woman’s bills, the husband has no financial obligation to the wife, only to his children.