By Colleen Mhlaba

LM v RDM (ECL) (unreported case no EL789/2022, 31-10-2023) (Norman J)

The primary purpose of r 43 of the Uniform Rules of Court is to provide interim relief during divorce proceedings. It is aimed at financially supporting the weaker spouse and children from financial hardship during litigation. This poses the question as to whether an inheritance received by the financially weaker spouse would have a significant impact on a maintenance order. The case of LM v RDM emphasises the importance of disclosure and the impact of inheritance on rule 43.

Case background

The parties in the matter were the applicant, LM (the husband), and the respondent, RDM (the wife). The husband, an ophthalmologist and the wife, a housewife. She had no form of employment outside the marital home. Divorce proceedings were instituted by the wife against her husband on 2 March 2023 wherein she sought, inter alia –

• maintenance for herself;
• contribution towards legal costs; and
• orders relating to the needs of her minor children.

The above was granted by way of r 43 proceedings. The wife would receive a monthly stipend of R 10 000 and other expenses such as bond payments, medical aid, and educational costs were covered.

Variation proceedings

Subsequent to the order, the wife instituted urgent variation proceedings due to the husband’s failure to continue paying her monthly stipend she had been receiving prior to the order in the amount of R 15 748,24. The order was varied on 25 May 2023 and the husband was ordered, inter alia, to reinstate the stipend along with the R 10 000.

Rescission

In June 2023, the husband sought the rescission of the 25 May 2023 variation order on the basis that the wife had received an inheritance in the amount of R 1 715 802,92. An amount that she had not disclosed. The husband submitted that the wife no longer needed the maintenance, and that if she continued receiving money, she would be unjustly enriched, and he would be financially burdened as the payments were coming from his overdraft facility.

The maintenance order was upheld despite the wife’s inheritance. The court was of the view that, despite the inheritance, the main purpose of the interim maintenance granted, was to maintain the financial status quo during the divorce proceedings having regard to the means and needs of the parties in respect of the claim.

Inheritance

The inheritance received by the wife was not sufficient to change her financial situation, this resulting in the court’s conclusion that no changes to the existing order were necessary. The court was of the view that no significant impact was made by the inheritance on her immediate financial needs. Neither was there any impact on her ability to maintain the standard of living already established during the subsistence of the marriage.

Rule 43 was implemented to address any financial difficulty that the vulnerable, a lower or non-earning spouse, might face during the divorce proceedings. The purpose of the rule is to ensure that there is temporary financial relief. It helps maintain the lifestyle that both parties were already accustomed to, noting that a sudden change in financial situation can lead to hardship.

The decision the court came to was based on both parties’ financial circumstances available at the time the original maintenance order was made. During this time, the wife had not received her inheritance. The interests of both parties needed to be balanced and assessed by the court, which had a discretion in making its determinations.

The inheritance, in this context, may be viewed as a resource for future use that offers long-term benefits. It should not be viewed as an immediate solution to the current financial obligations.

It is imperative that a spouse’s immediate welfare is prioritised during divorce proceedings. It is important for a court to recognise that it is essential to meet the present financial responsibilities of individuals, making sure that both parties are treated fairly. Balance and careful consideration are imperative in protecting the well-being of both parties involved in the divorce.

Disclosure

The husband submitted that the wife’s omission to disclose her inheritance led to a judgment that was based on misleading facts. Further emphasising the importance of financial disclosure, bringing into consideration that courts require transparency when assessing maintenance obligations. In the present context, the wife only disclosed her inheritance after the initial court order was made. There was nothing to suggest that she had concealed this information intentionally.

The husband’s argument was seemingly based on the belief that had the court known about the inheritance, the outcome may have been different. However, for non-disclosure to be considered significant to warrant a change of the maintenance order, it needs to be ‘material and intentional’ (Bertus Preller ‘Balancing the Scales of Interim Maintenance: A South African Case Study on Inheritance and Rule 43 Orders’ (https://familylaws.co.za, accessed 3-11-2024)). The non-disclosure needs to have influenced the court’s decision. In this context, the wife revealed the inheritance subsequently and without deceit.

The wife argued that disclosure of the inheritance was of no relevance to the main issues at hand and further asserted that the inheritance should not be considered to be part of the joint estate. This brings to light the principle of inherited assets being preserved rather than being liquidated for maintenance expenses (Preller (op cit)). Where there are other sources of income available, inheritance is not intended to be used to satisfy immediate income needs (Preller (op cit)).

In this context, the financial circumstances of both parties were no doubt assessed by the court. Summarily, the husband’s financial impact may have outweighed the wife’s inheritance, this being his overall assets and his ability to fulfil maintenance obligations. Ultimately, the court’s evaluation focused on ensuring that the maintenance obligations were met without having to deplete the inherited resources.

Factors to be considered

Section 7(2) of the Divorce Act 70 of 1979 sets out the factors to be considered by a court before making an order for spousal maintenance. These factors include the prospective means, respective ‘earnings, financial needs, and obligations of the parties, as well as their standard of living during the marriage’ (Preller (op cit)). The payment of the maintenance emanates from the spousal obligation and has nothing to do with the inheritance received by the wife. There is emphasis on the financial standard of living before the divorce.

Further, rule 43(6) allows for flexibility. Where there has been a change in circumstances, rule 43(6) makes provision for a court to change its decision, based on the parties changing financial needs. This ensures there is balance and commitment in the interim relief to be adapted to families changing financial circumstances.

Conclusion

In conclusion, rule 43 has been put in place to ensure that the financially vulnerable spouse is protected. Any inheritance should ‘not impact the maintenance order because the interim relief provided under Rule 43 is based on the financial reality at the time of the divorce proceedings’ (Preller (op cit)). The main emphasis is to maintain ‘the standard of living and balancing the financial inequities that may exist due to the marriage dynamics’ (Preller (op cit)).

Colleen Mhlaba LLB (NMU) is a candidate legal practitioner at Hirschowitz Flionis Attorneys in Johannesburg.
This article was first published in De Rebus in 2024 (December) DR 50.