H.E.K v J.R.K (111/2021) [2021] ZAFSHC 20 (11 February 2021)

H.E.K v J.R.K (111/2021) [2021] ZAFSHC 20 (11 February 2021)

The court found that a material change in circumstances had occurred regarding the primary residence and maintenance of the minor children, as the applicant had relocated and the children now reside with her. The respondent conceded primary residence and did not oppose this aspect. The court held that the change in residence justified a variation of the previous order to award primary residence to the applicant and to order the respondent to pay maintenance for the children. However, the court found no material change in the applicant's circumstances to justify spousal maintenance or a contribution towards her legal costs, as her financial position and inheritance status remained...

Citation
[2021] ZAFSHC 20
Parties
Applicant: H[....] E[....] K[....]; Respondent: J[....] R[....] K[....]
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 February 2021
Case Number
111/2021
Procedural Posture
Urgent Application / Rule 43(6) Variation Application
Outcome
Application granted in part: variation of previous order regarding primary residence and maintenance for minor children; other relief dismissed.
Judges
Molitsoane
Legal Topics
Rule 43 Variation, Child Maintenance, Parental Rights and Responsibilities, Primary Residence, Contribution Towards Costs
Family and Children Civil Procedure Rule 43 Variation Child Maintenance Parental Rights and Responsibilities Primary Residence Contribution Towards Costs

Case Brief

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Parties

H[....] E[....] K[....]

Applicant

J[....] R[....] K[....]

Respondent

Procedural Posture

Urgent Application / Rule 43(6) Variation Application

Legal Issues

  1. 1 Whether there has been a material change in circumstances justifying variation of the previous Rule 43 order.
  2. 2 Whether the applicant is entitled to sole primary residence and care of the minor children.
  3. 3 Whether the respondent should pay increased maintenance for the minor children.

Ratio Decidendi

The court found that a material change in circumstances had occurred regarding the primary residence and maintenance of the minor children, as the applicant had relocated and the children now reside with her. The respondent conceded primary residence and did not oppose this aspect. The court held that the change in residence justified a variation of the previous order to award primary residence to the applicant and to order the respondent to pay maintenance for the children. However, the court found no material change in the applicant's circumstances to justify spousal maintenance or a contribution towards her legal costs, as her financial position and inheritance status remained...

Court Disposition

Application granted in part: variation of previous order regarding primary residence and maintenance for minor children; other relief dismissed.

Orders

  • Both parties have full parental rights and responsibilities and rights of care and contact in respect of the minor children as contemplated in section 18 of the Children’s Act.
  • Primary residence of the minor children is awarded to the applicant as contemplated in section 18(2)(a) of the Children’s Act 38 of 2005.