Divorce is never easy, even when a childless young couple, who have accumulated little by way of assets, reach an amicable agreement and go their separate ways. However, this article examines a worst-case scenario and attempts to draw lessons for any couple contemplating a divorce. It also raises concerns about faults in our legal system that have allowed for the situation this particular couple find themselves in.
The case involves a Rule 43 application to the High Court. This is when, during the divorce process, one party applies for interim maintenance. Contested cases that end up in court can take quite a while to be finalised, and it’s fair that a non-breadwinner and any dependants are supported financially during the legal process. Sadly, in this extreme case, “quite a while” is 12 years and counting…
Acrimony exemplified
In August last year, a divorce dispute, LS v JS, came before the Gauteng High Court. Under Rule 43, the husband had applied for relief in his interim maintenance obligations, while his wife had filed a counter-application requesting a maintenance increase. This, the latest in a string of court actions by these parties against each other, exposed the whole sorry saga of their divorce, which, after more than 12 years, is still to be concluded.
The mounting legal costs, which exceed R10 million thus far, are bad enough. The court, anticipating a continuation of the tit-for-tat actions taken by the two parties and their legal representatives, suggested that ultimately there may “not be anything left to fight over”.
Few people would disagree, however, that the worst aspect of this case is the psychological toll on the couple’s daughter, their only child, who was five years old when LS and VS began divorce proceedings in 2007 and turned 17 early last year.
Dr Samantha Smith, a candidate attorney at law firm STBB and the firm’s chief content writer and legal editor, says both parties in the case are at fault in prolonging the nightmare. In an article “12 years of acrimony: A cautionary tale for couples in the process of divorcing”, she writes: “During this protracted legal battle, the applicant (the husband) has sought to vary maintenance orders, requested the disposal of various properties – including the marital home – to settle outstanding debts, and successfully contested an order requiring him to pay R3 million toward the respondent’s legal fees. The respondent (the wife), on the other hand, refused to confirm her new employment to the applicant for months – a fact which is material to the variation of a maintenance order – and has attempted to inaccurately portray the respondent as ‘a man of extensive means’.”
Of the couple’s daughter, the court said she had “spent almost her entire childhood within the stress, tension and animosity of high-conflict divorce proceedings”. The psychological toll on the child is recorded in a 2021 report by the Family Advocate.
Says Smith: “Without assuming the content of the report, children caught in the middle of acrimonious and protracted divorces may experience a range of negative emotions, including anger, sadness, anxiety, and confusion. They may suffer from feelings of abandonment or guilt, and struggle with trust and attachment issues. Notably, children may experience behavioural changes, such as withdrawal or declining academic performance, and loss of stability.”
‘Reforms needed’
In another commentary on the case, family law attorney Bertus Preller from Abrahams & Gross in Cape Town says it represents “a damning indictment of the current divorce process in South Africa, highlighting systemic failures that allow proceedings to drag on interminably at exorbitant cost”.
Preller concludes: “This case serves as a powerful reminder of the need for a more efficient, child-centred, and resolution-focused approach to divorce proceedings. It highlights the potential for reform in how high-conflict, complex divorces are managed within the judicial system.”
