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.
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.
