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Can you apply for costs already incurred in a Divorce under Rule 43?


The claim for a contribution towards costs in divorce cases originated in Roman-Dutch procedure and is well-established in our practice. Rule 43 of the Uniform Rules regulates the process to be adopted where a contribution to costs is sought. The essential basis of the claim is the reciprocal duty of support between spouses, which includes the cost of legal proceedings.

The quantum of the contribution to costs which a spouse may be ordered to pay lies within the discretion of the presiding judge.  In the case of Van Rippen v Rippen the guiding principle for the exercise of that discretion was formulated as follows:
 
"...  the Court should,  I think,  have the dominant object in view that,  having regard to the circumstances of the case,  the financial position of the parties,  and the particular issues involved in the pending litigation, the wife must be enabled to present her case adequately before the Court."
 
When assessing a spouse's reasonable litigation needs, a court will have regard to what is involved in the case, the scale on which the parties are litigating, or intend to litigate, and the parties' respective means. The legal rules relating to the reciprocal duty of support between spouses are gender neutral, so that an indigent husband may claim support from an affluent wife. But the reality must be acknowledged that, given traditional child-care roles and the wealth disparity between men and women, it has normally been women who have had to approach the courts  for  a contribution  towards  costs  in  divorce litigation.

In addressing the question whether a court may order a contribution to legal costs which have already been incurred, it is helpful, as a starting point, to give consideration to the position  pertaining to retrospective  orders for the payment of spousal maintenance, for legal costs in a matrimonial action are a species of support and the same rules should logically apply.

At common law a claim for arrears spousal maintenance is prohibited by virtue of the principle in praeteritum non vivitur (one does not live in arrears), the argument being that if the spouse managed on her own resources, there was  no need for support. An exception to this rule is recognized where the spouse has incurred debts in order to maintain herself.
 
Since the in praeteritum  non  vivitur rule does  not  function where a spouse can show that she had to incur debts in order to maintain herself, logic would suggest that it should similarly not apply where she has had to incur debts to fund her legal costs. The question, then, is whether there is anything in precedent or principle which militates against allowing a claim for past legal costs in such circumstances.
 
In Nicholson  v Nicholson the judge disallowed  the  amounts  claimed  by the applicant in respect of legal costs which had already been incurred,  simply stating that "they cannot be covered by a contribution towards the costs". No reason was given, or authority cited, for this proposition.
 
In Senior v Senior the judge followed the approach in the Nicholson case and excluded the arrear costs from the applicant's claim for a contribution toward costs, again without furnishing  reasons or citing authority.
 
In the case of Petty  v Petty the judge agreed  with  the  submission  by the  respondent's counsel that "past attorney/client costs may not be considered as they do not fall within the purview of Rule 43". This statement too was unsubstantiated by reason or authority.
 
A different approach was followed in the Western  Cape Division to the question of whether  past legal  costs could be allowed  in  terms  of Rule 43. In the case of Cary v Cary the judge very carefully considered  the authorities  and the constitutional imperatives involved. He observed at the outset that he was required to exercise his discretion under Rule 43 in the light of the fundamental right to equality and equal protection before the law.  He reasoned that there should be "equality of arms" in order for a divorce trial to be fair, and came to the conclusion that:
 
"...  applicant is entitled to a contribution towards he costs which would ensure equality of arms  in the divorce action against her husband.  The applicant would not be able to present her case fairly unless she is empowered to investigate respondent's financial affairs through the forensic accountant appointed by her.  That is applicant will not enjoy equal protection unless she is equally empowered with 'the sinews of war'.  The question of protecting applicant's right to and respect for and protection of her dignity also arises in the present situation,  where a wife has to approach her husband  for the means to divorce him.  I therefore regard myself as being constitutionally bound to err on the side of the 'paramount consideration that she should  be enabled adequately to place her case before  the Court'.  The papers before me indicate that respondent can afford to pay the amount claimed and that he will not be prejudiced in the conduct of his own case should he be ordered to do so".
 
The judge considered that the applicant's claim for a contribution to costs was founded on the duty of support and was not barred by the principle in praeteritum non   vivitur  simply because the applicant could show that  she was  claiming  for debt incurred to keep herself.  He went on to say that:
 
"Applicant has timeously applied for an order of the Court.  To treat an order for a contribution towards the necessarily incurred unpaid debts amounting to R 59 500 as a retroactive award is entirely artificial.  Finally I should point out that the constitutional imperatives referred to above (which were not considered in Nicholson's case) also impel me to reject Mr Rogers' submission [that costs already incurred may not form the subject  of an order in terms of Rule 43]".
 
In  the Free  State  Division the judge followed  the Cary judgement  in  the  unreported decision  of  Du  Plessis  v Du  Plessis. He  acknowledged  the relevance of  the fundamental right to equality before the law and agreed that costs already incurred may be included  in the consideration of an appropriate contribution towards under  Rule  43.  He  rejected  the  contrary  approach  taken   in   Nicholson and Senior, which he regarded as artificial and wrong in  principles.
 
In Friedman v Friedman Case Number 6664/2019 heard in the Western Cape Division the presiding judge Davis were in agreement with the approach  adopted  in the Cary matter,  which  accords  with  the  injunction  in  s  39(3)  of the Constitution  to promote the spirit, purport and objects of the Bill of Rights when developing the common  law.
 
Judge Davis was of the view that the  importance   of  equality   of   arms   in   divorce   litigation   should   not   be underestimated. Where  there  is a marked  imbalance in the  financial  resources available to the parties to litigate,  there is  a real danger that the poorer spouse - usually the wife - will be forced  to settle for less than that to which  she is legally entitled simply  because  she cannot  afford to go to trial.  On the  other  hand the husband, who controls the purse strings, is well able to deploy financial  resources in  the service  of  his cause.  That situation  was according to the judge inherently  unfair.  In  her view the obligation on courts to promote the constitutional rights to equal protection and benefit of the law, and access to courts requires that courts  come to the aid of spouses who are without means to ensure that they are equipped  with the necessary resources to come to court to fight for what is rightfully theirs.
 
The right to dignity is impacted when a spouse is robbed  of the necessary means to litigate. A person's dignity is weakened when she has to go cap in hand to family  or friends to borrow funds for legal costs, or forced to be beholden  to an attorney who is willing to wait for payment of fees - in effect to act as her "banker". The main duty of support is owed between  spouses, and a wife who is lacking means should be entitled to look to the husband, if he has sufficient means, to fund her  reasonable  litigation  costs.  (The same  of course  applies  if the  husband  is indigent and the wife affluent.) And where  an impecunious spouse  has  already incurred  debts in  order to litigate,  whether  to family or to an attorney,  a court should protect the dignity of that spouse by ordering  a contribution to costs sufficient to repay those debts (at least to the extent that the court considers the expenditure reasonable).
 
In the Friedman case, Judge Davis took the view that the obligation to pay a contribution  towards a wife's  legal  costs does not necessarily postulate an obligation only to pay for part of those costs.  The extent of the contribution  should logically  depend on how  much, if anything, the wife herself is able to contribute. Yet it has often been said that a wife who applies for a contribution to costs under Rule 43 is only entitled to part, but not all, of her costs.   Indeed  this appears to have been elevated to a fixed  rule.  In  the case of Micklem the judge rightly observed that a wife should be enabled adequately to place her case before court.
 
Judge Davis was further of the view that it is arbitrary to apply an inflexible rule that a wife who has no means of funding  the balance  of  her legal  costs is  nonetheless  only entitled  to part of the costs which  she  reasonably  requires  to fund  her litigation.  It is like expecting  a motor vehicle to get from point A to B on three quarters  of a tank of petrol when the journey requires a full tank of petrol, or feeding a person 1600 calories per day when they really need  2000 calories  per day to function  optimally:  in  both cases the lack of vital resources  retards or defeats the endeavour.
 
Judge Davis went further and stated that logic and fairness dictate that if the wife is indigent and the husband has the wherewithal to fund his own as well as all the wife's reasonable  costs, he should be ordered to do so. Since legal costs are covered  by the duty of spousal support,  there can be no justification  for a  situation where  the  husband,  who controls the purse strings, pays for all his legal costs upfront, while the wife without means is forced to borrow to fund the shortfall,  or to ask her attorney to carry the case  without  full  payment.  Such a situation would be an unacceptable  impairment of the right to dignity and equal protection  of the law.
 
In the Friedman matter the Judge ordered the husband to make a contribution of R 750 000 towards the wife’s legal costs.

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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Retirement Funds and Divorce
    • Hiding Assets in a Divorce
    • Trusts and Divorce
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Relocation and Child Abduction >
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • Parental Alienation
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • Family Law Newsletter March 2017
    • September 2016 Family Law Newsletter
    • Family Law Newsletter 2017 1
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities