Smith v Smith (1324/2017) [2017] ZAFSHC 77 (23 May 2017)

Smith v Smith (1324/2017) [2017] ZAFSHC 77 (23 May 2017)

The court found that the applicant had not established a financial need for maintenance pendente lite, as she had received R150,000 from the respondent, which she chose to invest rather than use for furniture or maintenance. This amount, together with her income, was sufficient to cover her monthly shortfall. The court held that the applicant's decision not to use these funds for maintenance did not create a financial need. However, the court found that the applicant was entitled to a contribution towards legal costs, given the respondent's financial position relative to the applicant. The usual amount of R5,000 was deemed appropriate for such contribution in this division.

Citation
[2017] ZAFSHC 77
Parties
Applicant: Jannetha Adriana Smith; Respondent: Ferdinand Jacobus Smith
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 May 2017
Case Number
1324/2017
Procedural Posture
Urgent Application / Rule 43 Application for Interim Maintenance and Contribution to Costs Pending Divorce
Outcome
Application for maintenance pendente lite dismissed; application for contribution to costs granted.
Judges
J.J.F Hefer
Legal Topics
Maintenance Pendente Lite, Contribution to Costs, Rule 43 Procedure
Family and Children Maintenance Pendente Lite Contribution to Costs Rule 43 Procedure

Case Brief

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Parties

Jannetha Adriana Smith

Applicant

Ferdinand Jacobus Smith

Respondent

Procedural Posture

Urgent Application / Rule 43 Application for Interim Maintenance and Contribution to Costs Pending Divorce

Legal Issues

  1. 1 Whether the applicant has established a financial need for maintenance pendente lite given the payment of R150,000 by the respondent.
  2. 2 Whether the applicant is entitled to a contribution towards legal costs from the respondent.
  3. 3 Whether the R150,000 paid to the applicant should be considered a capital asset or available for maintenance.

Ratio Decidendi

The court found that the applicant had not established a financial need for maintenance pendente lite, as she had received R150,000 from the respondent, which she chose to invest rather than use for furniture or maintenance. This amount, together with her income, was sufficient to cover her monthly shortfall. The court held that the applicant's decision not to use these funds for maintenance did not create a financial need. However, the court found that the applicant was entitled to a contribution towards legal costs, given the respondent's financial position relative to the applicant. The usual amount of R5,000 was deemed appropriate for such contribution in this division.

Court Disposition

Application for maintenance pendente lite dismissed; application for contribution to costs granted.

Orders

  • The respondent is ordered to pay a contribution of R5,000 towards the applicant's legal costs.
  • The costs of the application are costs in the main action.