Recently, the Western Cape High Court ordered a father embroiled in protracted divorce proceedings to settle his maintenance arrears before his wife and minor children are required to vacate the matrimonial home, which he unilaterally sold without securing alternative accommodation for his dependents.
In M.S.H v J.S.H, MSH (‘the Applicant’) urgently applied for the variation of an existing Rule 43 order, which obligated him to finance the accommodation costs of JSH (‘the Respondent’) and their minor children at the parties’ matrimonial home in a Cape Town residential estate. These costs, which are additional to interim child and spousal maintenance, included a monthly bond instalment, municipal rates and taxes, water, electricity, and Netflix, pending the finalisation of divorce proceedings.
Despite the existence of the Rule 43 order, which was granted in April 2019, the Applicant sold the matrimonial home – occupied by the Respondent and their children – for R6.5 million on 30th July 2024, without arranging alternative accommodation for the occupants.
In early September 2024, the Applicant’s attorney informed the Respondent’s attorney that the property had been sold and that the registration of the transfer of the property was scheduled for 17th October 2024. Crucially, a condition of the sale agreement was to provide the purchaser with vacant possession on transfer. After the Respondent rejected the Applicant’s offer of a monthly payment of R15 000 towards alternative accommodation, the Applicant sought to formally vary the Rule 43 order less than a week before registration.
Noting that his material circumstances had markedly deteriorated, the Applicant acknowledged that his maintenance arrears amounted to just under R190 000.00. Indeed, the Applicant rationalised that the proceeds from the sale would allow him to settle his debt, make provision for the Respondent’s future maintenance claims, and alleviate his financial strain. To that end, he sought to reduce his current payments to R12 000.00 per month (towards rental), excluding Netflix and Internet costs, and requested the Respondent and minor children vacate the matrimonial property prior to 17th October 2024.
The court, however, refused to grant the relief sought. Emphasising that the Respondent is unemployed and lacks an independent source of funds, the court remarked that she would have trouble securing a lease in her name or qualifying for bridging finance. Describing the parties’ children as ‘vulnerable’, the court stressed the paramount importance of upholding the best interests of minors in all court proceedings concerning their welfare, as specified under 28(2) of the Constitution.
Recognising that the High Court operates as the upper guardian of all minors, the court reasoned that authorising the removal of the Respondent and minor children from the matrimonial home would ultimately leave them homeless and amount to a dereliction of its judicial obligations. Critical of the Applicant’s explanation that he avoided securing alternative accommodation because he did not want to be contractually bound to a lease agreement, the court highlighted the statutory and common law duty of parents to maintain their children in accordance with their financial means. Indeed, the court went as far as candidly describing the potential consequence of granting the Applicant’s relief as ‘[leaving the Respondent and children] on the street without a roof over their heads.’
In light of these considerations, the court directed the Respondent and minor children to remain in the matrimonial home until the Applicant makes payment of the outstanding maintenance to prevent their potential homelessness. Further, the court ordered the Applicant to pay the Respondent R16 000.00 per month towards rental, plus a two-month deposit of R32 000.00 to secure new accommodation as well as an additional monthly payment of R1 200.00 for Internet and Netflix.
STBB Cape Town’s family law attorneys have the skill and experience to advise on all divorce-related disputes. For efficient legal assistance, contact our experts at family@stbb.co.za.
