Ruling sets disclosure standard for maintenance courts
A three-judge Bench of the Gauteng High Court (Johannesburg) has pronounced on the level of disclosure required by those appearing in a maintenance court, reports Tony Beamish for Moneyweb. Both parties must now make full financial disclosure: every detail, including trusts and offshore assets, as well an explanation if a spouse enjoys a particularly luxurious lifestyle.
Although the judgment pertained to Rule 43 (pre-divorce) maintenance actions in the High Court, the decisions of the court are binding on those Magistrate’s Courts that deal with divorce or maintenance. While not a referred matter, the judgments of TS v TS and SC v SC handed down by Johannesburg Judge Brian Spilg appeared to take centre stage in the full Bench proceedings, notes the report.
The three-judge Bench decision followed three divergent decisions that had caused uncertainty. Now, full and frank disclosure of their relative financial positions to the court and the other party by way of an affidavit is required.
These affidavits must also be accompanied by Form E – also under oath – and filed seven days before the hearing. Form E, a 20-page document that each spouse completes, will give a maintenance officer a clear insight into the lifestyle of the parties.
A self-employed Pretoria mother has already acted on TS v TS and SC v SC.
According to the Moneyweb report she produced seven lever arch files of financial documents in the Pretoria Maintenance Court. Beamish says the magistrate took one look at the trolley load and ordered that she produce no more than one lever arch file for the hearing.
The matter is being taken on review in the Gauteng High Court (Pretoria) on the basis that full disclosure was made, as stipulated by the High Court. The magistrate was not obliged to read every financial document – only those referred to by the parties.
The magistrate’s decision to curtail the mother’s constitutional right to a fair hearing is to be reviewed. She has also asked the High Court that the magistrate pay the costs of the review application on a punitive scale out of her own pocket so that the taxpayer is not burdened with this expense.
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