Husband ordered to pay maintenance of stepchild while divorce is pending as he is the administrator of the joint estate

September 1st, 2023
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GR v RR (GP) (unreported case no 38304/21, 21-2-2023) (Noko AJ)

In GR v RR the Gauteng Division of the High Court ordered that pending a divorce, the respondent continue paying maintenance for his stepson. The applicant brought an application in terms of r 43 of the Uniform Rules of Court for interim orders of maintenance for the applicant and the two children, contribution of legal costs and that the primary residence of the parties’ minor child be awarded to the applicant subject to the respondent’s right of reasonable contact with the minor child.

The parties were married to each other in terms of customary rites in 2008 and subsequently entered a civil marriage, which marriages still subsists. In the High Court the applicant’s counsel submitted that the applicant is no longer persisting with the prayer for primary residence and reasonable contact for the minor child since the parties still reside together. The maintenance for the children, includes the major child who was born of a relationship between the applicant and a third party.

In the prayers set out in the notice of motion, the second prayer states:

That the respondent be ordered to contribute to the maintenance as follows:

By making payment of maintenance to the applicant for herself, the minor child, and the major child in the amount of R 50 000 per month on or before the first day of every month.

By retaining the applicant, the minor and the major child on the current medical aid and membership of the respondent and by making payment and by bearing all medical expenses incurred in private healthcare in excess of the cover provided by any medical aid scheme or hospital plan of which the major child is a member, such costs include all medical, dental, pharmaceutical (including levies), surgical, hospital, orthodontic and ophthalmic (including spectacles and/or contact lenses), physiotherapeutic, psychotherapeutic, occupational therapeutic, homeopathic, chiropractic and similar medical expenses, which are not covered by the medical aid scheme. The respondent shall reimburse the applicant for all expenses so incurred in respect of which she has made payment, or all expense so incurred in respect of which she has made payment, or shall make payment directly to the service providers, as the case may be, within five days of the applicant providing the respondent with proof of payment and/or the relevant invoice.

For as long as the major child, applies himself with due diligence and continues to make satisfactory progress, by making payment of all reasonable expenses incurred in respect of the major child’s tertiary education, such costs to include, without limiting the generality of the foregoing, all university fees and/or fees due to an institution for higher learning attended by major child, tuition fees, as well as the costs of, but not limited to, the costs of all books, stationery, equipment (including computer hardware and software, printer hardware and software and electronic devices reasonably required by him). The respondent shall reimburse the applicant for all expenses so incurred in respect of which she has made payment, or all expense so incurred in respect of which she has made payment, or shall make payment directly to the service providers, as the case may be, within five days of the applicant providing the respondent with proof of payment and/or the relevant invoice.

The counsel for the applicant submitted that the applicant had been unemployed since 2017. She had tried to start various businesses but was unsuccessful. There was never pressure for her to look for employment as the respondent had always been gainfully employed and able to maintain the applicant and the children. The respondent has been paying for all household related expenses and paid the applicant an amount between R 28 000 and R 32 000 per month for her personal needs. In addition, the respondent gave the applicant an Absa credit card for her unrestricted use. The respondent has also paid for the expenses related to the schooling of the major child. Even though the respondent is gainfully employed, he has decided not to continue with his responsibilities associated with maintenance hence the application in terms of r 43 was launched.

The counsel for the applicant further submitted that in an exchange between the parties the respondent sent a WhatsApp message to the applicant where he stated that he will no longer be making financial resources available to the applicant until the divorce is finalised. The counsel for the applicant added that the respondent has sufficient means available to provide for the needs of the applicant. The counsel pointed out that the respondent’s business is to provide services to government departments mostly in respect of tenders secured by his company. The parties have purchased a matrimonial home worth R 4 million in cash. He has improved the said property to the value of R 100 000 and purchased furniture to the value of more than R 1 million. This information was not objected to by the respondent in his answering affidavit.

The applicant’s counsel further contended that the argument by the respondent that there is no legal obligation to maintain the major child as he has, inter alia, not adopted him is unsustainable. The respondent has been maintaining the child without any qualm since 2018 after the biological father stopped contributing to his maintenance. The applicant’s counsels added that in fact there is a legal obligation on the applicant to maintain the child and as she is married in community of property to the respondent the latter is indirectly contributing to the maintenance for the said major child. The counsel for the applicant further submitted that the respondent has been less than candid with the court claiming that he is only receiving a monthly salary of R 40 000 and at the same time stating that he has monthly expenses to the tune of R 68 584,40.

The High Court pointed out that the respondent on the other hand contended that the applicant’s list of expenses appears to be too luxurious and unnecessary. The High Court said that the order, which may be granted in terms of r 43 applications is predicated on the determination whether there is a need for payment of maintenance and further as whether the respondent can afford it. The High Court added that it is not in dispute that the parties though involved in a divorce proceeding are still residing together. Further that the applicant is unemployed, and the respondent has always been the breadwinner. In fact, the respondent conceded that he has been paying for all household expenses and is still prepared to proceed with payments.

The High Court said that the respondent is a civil engineer and chief executive officer of a private company and that his stated income is R 40 000 per month and his expenses are well over R 68 584 per month. The High Court pointed out that it appears that the respondent was indeed less candid with the court in this respect but failed to take the court into his confidence and explain how he pays for the excess. The High Court referred to another matter where Spilg J in SC v SC (GJ) (unreported case no 20976/2017, 28-2-2018) (Spilg J) held that:

‘The mere fact that a party claims to earn a salary and produce a payslip or even an IRP5 form tells a court very little unless it is self-evident that he or she is strictly a wage earner with no personal connection to the employer.’

The High Court said that the respondent in this case has a personal connection with the employer. The High Court further added that by the glance on the bank statement of the records of transactions in the business account of the respondent, it appears astounding for the respondent to contend that the applicant should look to her parents for maintenance. The High Court said that this confident but ill-informed suggestion was being made despite evidence, which demonstrates that the respondent appears to be a philanthropist who occasionally pay his parents, siblings, and girlfriend some thousand rands. The High Court added that the applicant is likely to start looking for employment as the parties would be divorced and the respondent would also have a new household to maintain. However, the respondent in the meantime has an obligation to provide maintenance and this may change once the applicant is employed during the operation of the interim order. The High Court also pointed out that the respondent should also keep the applicant and the children on the medical aid.

The High Court pointed out that under the common law a stepparent has no legal duty of support in respect to the stepchildren. The High Court said that reference was made to two judgments in Heystek v Heystek 2002 (2) SA 754 (T) where a stepfather who was married in community of property had an obligation to maintain the stepchild in his capacity as administrator of the joint estate and his control of the common purse. The High Court added that the emphasis on these two judgments was the fact that the parties are married in community of property, and it follows that such an obligation to pay maintenance may not follow when such parties are divorced.

The High Court said that it is understood that the stepchild’s upbringing and maintenance is the responsibility of the applicant and the child’s biological father. The High Court added that it was quite curious why the applicant in this case or even the respondent were both content that the biological father was not discharging his responsibilities and paying maintenance for his child. The High Court said if anything they have themselves to blame. The High Court added that the applicant’s failure to provide any explanation to allow the major child’s father not to pay is unfathomable except to say that the applicant is taking advantage of the respondent and at the same time the respondent indirectly is liable on the basis that he is the administrator of the joint estate.

The High Court pointed out that in the end the respondent should be ordered to also contribute towards maintenance of the stepchild for a period of six months, during which the applicant should ensure that the biological father carrys out his obligations to pay for maintenance of his child.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2023 (Sept) DR 32.

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