I CAN'T AFFORD DIVORCE LEGAL FEES, WHAT'S NEXT?: A PRECIS OF CONTRIBUTION TOWARDS LEGAL COSTS IN DIVORCE, JUDICIAL SEPARATION OR NULLITY OF MARRIAGE PROCEEDINGS.

By Sonny Mncedisi Dube

Introduction

During divorce proceedings, judicial separation or nullity of marriage, the parties wrestle with a multitude of issues - firstly the family crumbles, then property battles, maintenance, custody, strife, verbal insults and slander etc ensue. The biggest sacrifice during the whole contest is mental health. As most of these aforestated proceedings are usually tediously protracted, legal fees becomes the most daunting of all woes for litigants - a real pain in the neck. What if one finds themselves faced with such an unfortunate fate, served with a summons for divorce, judicial separation or nullity of marriage (or wishes to institute the same), but does not have the financial muscle to prosecute or defend their cause

The Precis:

Before acting out of convenience and exploring other financial options some of which may yield undesirable usurious arrangements, one needs to know that they can make a court application seeking the other party to contribute towards legal costs to institute or defend an action for divorce, judicial separation or nullity of marriage. This application stems out of the reciprocal duty of support that spouses owe each other. The basis of an application for contribution towards costs is founded on the duty of support that spouses owe each other and its purpose is to enable a spouse who would otherwise not be able to do so, to place his or her case adequately before the Court. This application is made in terms of section 2(1) (b) of the Matrimonial Causes Act [Chapter 5:13] as read with rule 67 (1) of the High Court Rules, 2021. Rule 67 (1) of the High Court Rules provides that; 

"When a spouse is without means to prosecute or defend an action for divorce, judicial separation or nullity of marriage, the court may on application order the other spouse to contribute to his or her costs, and where necessary, to his or her maintenance pending litigation, such sums as it deems reasonable and just."

In Dube v Mavako-Dube 2006 (2) ZLR 97 (H) NDOU J outlined the law on contribution towards costs in divorce proceedings as follows: “According to H. R. Hahlo – South African Law of Husband and Wife 50th Edition, page 424, the claim for contribution towards costs in a matrimonial cause is sui generis. It has its origin in Roman-Dutch procedure, and has been sanctioned through many decades of practice. See Chamani v Chamani 1979 (4) SA 804 (W) and Van Ripper v Van Ripper 1949 (H) SA 634 (C). Its basis is the duty of support spouses owe each other and its purpose is to enable a spouse, who would otherwise not be able to do so, to place his or her case adequately before the court. See Botes VT Botes 1969 (2) RLR 238 (7); 1969 (3) SA 169 (R). The requirements for such an order are that:

(a) There must be a subsisting marriage

(b) The suit in question is a matrimonial one

(c) The applicant has reasonable prospects of success

(d) The applicant is not in a financial position to bring or to defend the action, as the 

case may be; and

(e) The other spouse is able to provide the applicant with his contribution.” ( page 101).

The learned Professor Hahlo, in his book “South African Law of Husband and Wife” states that the last two requirements cited, in particular, are considered conjunctively. This is to say that an order will not solely be granted for the simple reason that the applicant is indigent circumstances or not in a financial position to bring or defend the action but also that it must be shown that the spouse from which such contribution is sought must be in a financial position to do so. In simpler words the onus is on the applicant to show that she does not have the necessary means while her husband is able to make a contribution.

In Treger v Treger GS 1-77, SMITH J had this to say at page 7:

“The court must look at the means of both parties and try to determine what is reasonable and just.” - see also Landry v Landry, 1970(1) RLR 134 at 137DH; Davis v Davis, 1939 WLD 108 and Butterworth v Butterworth 1943 WLD 127 at 130.

It is also judicious to bring to the fore an important issue that an application for contribution towards costs is prospective and not retrospective as was clarified by the learned Munangati-Manongwa J in RUDLAND v RUDLAND HH 57-18 wherein she pronounced as follows "I would agree with Mr Mpofu’s argument that an order for contribution for costs is prospective and not retrospective. The language used in r 274 points to “need,” it refers to a spouse without “means” yet she seeks to prosecute or defend action for divorce. As of the date of hearing the applicant has already prosecuted her divorce action, she has managed to present her case before the court. It could well be that the applicant has had to borrow money to finance her litigation. That evidence is not before the court, what is apparent is that she has placed her case before the court with due legal representation........."

In conclusion, for litigants, whilst this is not a panacea to one of their most daunting woes, it is an option. As aforesaid, before acting out of convenience and exploring financial options some of which may yield undesirable usurious arrangements, one can find recourse in section 2(1) of the Matrimonial Causes Act as read with Rule 67 (1) of the High Court Rules 2021. Most important to note is the fact that whilst an application of this nature can be brought even if the divorce, nullity of marriage or judicial separation proceedings have commenced and are ongoing, it is prospective and not retrospective, for bringing it in the latter circumstances becomes moot. Whilst it may not have been necessary to ramble, it is believed that it is helpful to aid clear thinking.

Malachi 2:16 “For I hate divorce, says the LORD the God of Israel.........."

REFERENCES

Botes v Botes 1969 (2) RLR 238 (7); 1969 (3) SA 169 (R).

Butterworth v Butterworth 1943 WLD 127

Chamani v Chamani 1979 (4) SA 804 (W)

Davis v Davis, 1939 WLD 108

Dube v Mavako-Dube 2006 (2) ZLR 97 (H)

High Court Rules, 2021

H. R. Hahlo – South African Law of Husband and Wife 50th Edition

Landry v Landry, 1970(1) RLR

Matrimonial Causes Act [Chapter 5:13]

RUDLAND v RUDLAND HH 57-18

Treger v Treger GS 1-77

Van Ripper v Van Ripper 1949 (H) SA 634 (C)

Disclaimer: This publication is merely for informative purposes and shall not be construed to constitute legal advice.

ABOUT THE AUTHOR

Sonny Mncedisi Dube is among other things a legal practitioner and a writer who writes in his personal capacity.

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