Want Your Spouse to Fund Your Divorce? The Court Needs Proof

A judgment delivered on 21 October 2026 dealt with the issue of a spouse asking the court for an order that her husband to pay a contribution of her legal costs in their divorce action.

The couple had been married for more than 20 years before separating in December 2016. The husband was a chartered accountant who ran his own practice, while the wife had largely devoted her time to raising their three children and managing the home. Their divorce proceedings were still ongoing, with the main issue being the wife's claim to a share of the accrual. She approached the court under Rule 43, asking her husband to contribute R750,000 towards her legal costs. Her argument was that she needed the money to properly pursue her claim, including paying for an attorney, counsel and a forensic accountant.

She suspected that her husband had not fully disclosed his financial affairs and believed there could be other assets or business interests that she knew nothing about. Her husband saw things differently.

He said his accounting practice had suffered a decline in business and that his financial position was not what it had once been. He said he simply could not afford the amount she was asking for. He also questioned whether the proposed legal costs were reasonable, considering the value of their estates.

In making its order the judge made it clear that needing financial assistance is only half the story. A spouse asking for a contribution towards legal costs must show both that they need the money and that the other spouse can afford to pay it. In this case, the judge accepted that the wife was at a financial disadvantage and that a forensic accountant would help to get to the bottom of her husband's financial affairs. However, on the evidence the court was not convinced that he could afford the full R750,000. His explanation about the decline of his business was considered credible. The court therefore ordered him to contribute R200,000 towards her legal costs, payable in instalments. He was also ordered to pay the costs of the application.

In my decades of litigation especially in divorce actions, I have come across many clients who have faced a similar problem when they suspect that their spouse may be hiding assets. My advice is where a person has limited knowledge say of the family's finances, it's important to remember that suspicion is not proof. The court requires proof as this case clearly demonstrates. The court will not simply assume that someone has money because their spouse believes they do. All is not lost though, if financial information is missing, there are definitely ways to address the problem.

In my practice, we would consider getting the court to compel the production of relevant documents. This would be the better route rather than expect the court to guess what the other spouse might be worth. When it comes to legal costs, remember assumptions are no substitute for proof.

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