Angry Man 2

What if my husband controls the money and I am unable to afford expensive litigation by Noa Kinstler (attorney)

Divorce litigation can become fairly expensive, especially if the value of the parties’ estates need to be determined and disputes arise in terms of the division of the assets. The parties are obliged to produce substantial amount of evidence including expert evidence in order to enable the Court to properly adjudicate on the issues. This leads to many legal hours and expert hours being spent on a matter.

Very often one finds that the husband has built up his estate and has the means to make use of expensive attorneys, senior counsel and expert witnesses to represent him in the divorce action. In contrast the wife is prejudiced in the sense that she would be less able to afford quality legal representation.

Our Courts are thus inclined to entertain an application by one spouse against another for contribution towards legal costs in terms of Rule 43 of the High Court Rules. In practice you will finds that a Court will award a comparatively low amount being the initial contribution to allow to cover the initial stages of litigation. However once preparation for trial have begun and various costs will need to be expended such as consultation with counsel, expert evidence, preparing court bundles and other trial related expenses.

This when you can turn to Rule 43(6) of the High Court Rules which entitles you to make an application to the Court for a substantial contribution towards costs.

In such application you will firstly need to set out a prima facie case or a bona fides defence. That is it is important that you are not litigating out of spite and anger and actually have a case to fight. A court will not fund frivolous litigation.

You will secondly need to prove to the Court your inability to fund the litigation and lastly you will need to quantify the contribution that you seek.

In cases like Senior v Senior and Cary v Cary our Courts restate the principles underlying contributions towards costs and the impact, in applying those principles, of the constitutional requirement of equality before the law in matrimonial disputes, so that a wealthy spouse does not enjoy unwarranted advantage over the other, less wealthy, spouse.

The amount awarded by the Court depends on the circumstances of each case including the means of the parties and the complexity of the case. In a reported judgment of Potelwa v Potelwa (2010) the Court awarded the Applicant an amount of R280 000.00 for payment of experts and associated legal costs.


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