A woman embroiled in divorce proceedings wanted her husband to pay maintenance towards a third adult child, who had moved home after being self-sufficient for five years.
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One sadly does not remain in childhood forever, and reliance on maintenance cannot serve as insurance for the choices one makes, a judge remarked during an interim maintenance application involving a son, who is in his 20s.
Judge Elmien du Plessis, sitting in the Gauteng High Court, Johannesburg, in a recent judgment, observed that one needs to distinguish between a legal duty and any moral duty that might rest on parents.
The legal issue before her involved an interim maintenance application (a Rule 43 application) by a woman who is embroiled in a divorce.
She demanded several financial contributions from her estranged husband, including a contribution to her legal costs, which at this point runs into more than R5 million.
The woman (the applicant) also claimed interim maintenance, pending the final divorce, for the couple’s children, all of whom are in their 20s. They are all university students. The husband is already paying interim maintenance for two of his children, but his wife is now also claiming maintenance for the third son, who, after leaving home five years ago, moved back home.
The court was told that this son lived in Israel for five years, during which time he was financially self-sufficient. The husband refuses to pay maintenance for this son. He was enrolled to study at the University of Johannesburg in 2019, but was not allowed to write exams as he did not attend lectures. He re-enrolled at the university last year. Not being self-supporting, he moved back home.
His father argued that any renewed dependency is attributable to this son’s own choices rather than incapacity. The husband is already paying for nearly all the household expenses, but the wife now wants R32,000 maintenance for herself and R37,000 for each of the three children.
She said her husband, a businessman, is wealthy, but he is hiding his assets from her. They are living in a R20 million home and have several holiday homes. The wife is a home baker, but she said she has a moderate income and cannot make ends meet, as her monthly expenses with the children at home are more than R100,000. This is in spite of her husband paying for most of the expenses.
Judge Du Plessis commented that intimate relationships, by their very nature, carry within them the seeds of grief.
The judge noted that grief, often manifesting as anger, is frequently encountered in Rule 43 applications, where the underlying loss arises from an impending divorce. The courts have to work through these emotions and provide a workable interim regime.
While the wife stated that her husband, during their marriage, was tight with purse strings, she now wants money to, among others, travel abroad. The judge commented that, pending the divorce, the wife cannot demand a standard of living better than what she enjoyed during the marriage, merely because the respondent has money but is frugal.
“Rule 43 cannot be used to correct perceived historic parsimony,” she said.
She also noted that the duty to support a child does not automatically end at the age of maturity (18 years of age), but continues until the child becomes self-supporting or financially independent.
An adult child can remain dependent, for instance, because they are engaged in tertiary studies, are unemployed, or underemployed in circumstances where economic or personal factors prevent self-support, or suffer from a disability or health barrier that limits earning capacity.
But this is not such a case, the judge said in refusing maintenance for the son. She also awarded maintenance for the wife and the other two children, but on a lower scale than asked for by the wife.
zelda.venter@inl.co.za