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GETTING RETRENCHED IN THE MIDDLE OF A DIVORCE! WHAT ISSUES WILL IMPACT ON THE COURT'S DECISION OF THE CHANGED EMPLOYMENT STATUS IN A MAINTENANCE CLAIM

GETTING RETRENCHED IN THE MIDDLE OF A DIVORCE! WHAT ISSUES WILL IMPACT ON THE COURT'S DECISION OF THE CHANGED EMPLOYMENT STATUS IN A MAINTENANCE CLAIM

Author: By Fawzia Khan
Date: 2025-11-26

In November 2025, the Gauteng High Court presided in a Rule 43 application brought by the wife against her husband in which the wife claimed maintenance of R5000,00 per month for each the couple's 3 children and asked the father to pay 100% of the children's medical and educational expenses.

She also asked for a contribution towards her legal costs in the amount of approximately R127000,00. A rule 43 application is a legal process afforded to a couple who were going through a divorce which allows an applicant to obtain certain interim relief pending the finalisation of the main divorce action.

The issues in a Rule 43 application are crisp and restricted to specific relief during a divorce, such as which parent will have custody of any minor children; what contact rights will be given to the non-custodial parent; how much maintenance would be payable per month; payment of the children's educational and related costs; payment of medical expenses and a contribution towards the applicant's legal costs of are usually claimed in this application.

In the case under review, the Rule 43 application was argued by the parties legal counsel but before the court could deliver its judgment, the father was retrenched from his employment. He received a once off lump sum retrenchment package.

The father argued that given the material change in his employment status, he said that his initial offer of maintenance had to be revised and the amount he could now offer was R1000,00 per month per child. He also said that his medical aid coverage for the family would remain until 31 December 2025, after which it will lapse, and asked that medical expenses not covered by the medical aid be equally shared between him and his wife.

He argued that he could not afford to contribute towards his wife's legal costs. Thus the main thrust of the father's argument was that he was now unemployed, and his severance package was a finite capital resource and that the Court should not speculate on his future employment.

The father refused to use any use of his pension funds, saying he wanted to avoid tax. The court found that even though the father's current income was zero, that the "children's needs for housing, food, medical aid, and education were ongoing and paramount.

To deprive them of these essentials so that the father can preserve his pension is contrary to established legal principles and the spirit of Section 28(2) of the Constitution". It did not accept the father's reasoning saying that being unemployed did not exonerated the father from his legal obligation to take care of his minor children.

The court cited a number of case authorities in support of its position, including Section 28 of the Constitution which refers to the best interests of the child being paramount. It held that the children's needs could not be sacrificed for the preservation of a parent's capital.

The court said that as the father was a qualified legal professional with corporate and legal experience, his assertion that he will be unemployed for a prolonged period lacked substantiation. The court rejected the father's tender of R1000 per month per child and ordered the father to pay an amount of R3500 per month per child as well as ancillary orders pertaining to the children's educational and medical expenses. It also ordered the father shall pay a contribution of R50,000.00 towards the applicant's legal costs.

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