The court as upper guardian of minor children

Protecting children’s best interests

As family lawyers, we talk repeatedly about “the best interests of the child”. This is the principle that informs and underpins the Children’s Act and should be the first priority in any divorce where children as involved. It’s reasonable to expect parents to put the best interests of their children before their own. Yet, time and time again, our courts are called on to act in their capacity as the upper guardian of minor children, when parents are too embroiled in their own disputes to prioritise their children. A recent case in the Western Cape High Court illustrates the court’s discharge of its duty to two minor children of a couple whose divorce proceedings have been underway since 2019.

In this case, although both spouses were guilty of refusing to engage with each other over a serious matter, arguably the husband’s behaviour was in dereliction of his parental duty and the wife had a legitimate complaint. 

Background to the case

The judgment concerned an appeal case in which the husband sought to vary a previous Rule 43 court order for maintenance and accommodation costs for his wife and their minor children. The couple was married in 2007 out of community of property with the accrual system and they have two daughters, aged 16 and 12.​ The wife instituted divorce proceedings in January 2019, which are still pending. The husband was originally required, via a Rule 43 order in April 2019, to cover various costs associated with the matrimonial home, where his wife and children continued to reside after the couple separated. However, in July 2024 the husband sold the property without informing his wife or making alternative accommodation arrangements for his family, and without benefit of a court order varying the Rule 43 order (effectively putting him in breach of the original order). He claimed financial strain, which included considerable maintenance arrears, and said the proceeds from the sale of the house would enable him to rectify the situation. When the transfer of the property was only a week away, he brought an urgent Rule 43 application before the court to vary the original order, proposing to pay a monthly rental amount and other costs directly to his wife. His appeal to vary the earlier court order sought to amend it to reflect the changed situation. The wife felt the proposed amended order compromised her wellbeing and that of the children. She was also understandably distressed by the urgency of the situation.

Husband’s reasons for the amended Rule 43 order request

The husband argued there had been a material change in circumstances since the original Rule 43 order was granted in 2019, to his financial detriment. The expenses associated with the property and the Rule 43 order were “financially ruining” him. To raise much-needed funds to settle debts and pay maintenance arrears, he had sold the matrimonial home and was required to give vacant possession to the buyer by October 2024. ​He did not inform his wife of this sale until a week before the buyers were due to move in, but he claimed in defence that he had offered his wife a monthly amount towards rental, along with the full deposit, internet and Netflix costs. He also offered to pay the removal costs. He asserted that his wife did not engage with him regarding the sale of the house or alternative accommodation, and that is why he approached the court. ​In his view, the proposed variation of the order was in the best interests of his children, as it would still provide for the accommodation and maintenance of his family, albeit in a different form.  ​

Wife’s reasons for opposing the amended Rule 43 order

For her part, the wife maintained that her husband did not engage with her regarding the sale of the house before accepting the offer to purchase and did not inform the purchaser that the property was subject to a standing Rule 43 order. Both parties claimed a lack of engagement by the other. One suspects they simply couldn’t communicate. Nevertheless, the onus was on the husband to make sure the wife was kept fully informed, given he was selling the home she occupied. She felt that the amended Rule 43 order her husband proposed lacked sufficient detail about the alternative accommodation and she questioned why certain provisions from the original Rule 43 order were omitted. She disagreed that her husband was in financial difficulty and objected to the short notice she was given to vacate the premises. She said the urgency of the application was self-created by her husband. It is hard to argue with that. ​

As she was unemployed, the wife pointed out that she would not be able to take out a lease in her name and the vagueness of the accommodation arrangements her husband outlined in the amended order could potentially leave her and the children homeless. And, in light of the substantial arrears for maintenance she was owed, her husband’s history of noncompliance with court orders did not give her confidence he would honour even the vague undertakings he indicated. Therefore, she believed the amended order was not in the best interests of her children, as it could render them vulnerable and without fixed accommodation. ​

The judgment 

The court considered the husband’s financial commitments, the wife’s concerns, and the best interests of the minor children. It granted a modified Rule 43 order that ensured the wife and children would not be left destitute. The husband was ordered to pay arrear maintenance and a deposit for new rental accommodation before his wife and children vacated the matrimonial home. This may have involved him paying occupational rent to the buyers, but that was a problem of his own making.

Legal principles of the case

Marriage imposes a reciprocal duty of support on spouses.​ This duty extends to the maintenance of minor children, including accommodation, food, clothing, medical care, and other necessities. ​Rule 43 of the Uniform Rules of Court provides for interim relief in divorce proceedings, including maintenance and accommodation orders. Because the couple was married out of community of property with accrual, the divorce was complex and was taking a long time to resolve. Therefore, a Rule 43 order had been granted to provide for the family until the divorce was finalised. Rule 43 orders can be varied if there is a material change in circumstances, which the husband claimed was the case. But the court has a duty to ensure that maintenance obligations are met promptly, which had not always happened in the history of this case.

Ultimately, the court must protect vulnerable parties, such as unemployed spouses and minor children, from being left without adequate support and accommodation. The court is the upper guardian of minor children and must prioritise their best interests in all decisions. This principle is enshrined in the Constitution and the Children’s Act, which emphasise the child’s right to family care, shelter, and basic needs. ​

These principles guided the court in mandating the husband to fulfil his obligations and ensure his minor children were not left without proper accommodation. ​The judgment underscores the court’s role as the upper guardian of minor children and its commitment to ensuring their welfare and stability. ​

Cape Town family lawyers can help

Divorce and family lawyer SD Law & Associates are based in Cape Town, Johannesburg and Durban. If you are in need of a Rule 43 order for interim maintenance, or if you feel you have been treated unfairly by the Rule 43 order in place, SD Law can help. Call Simon on 087 550 2740 or contact us and we will look at your case in detail and advise you on the best way forward – to protect the interests of all parties, especially the children.

Further reading:

• Interim maintenance – how to use Rule 43 in divorce proceedings
• Calculating spousal maintenance
• Man who failed to pay maintenance to child and former wife must report to jail
• Judge blocks sale of R7m home in divorce dispute
• Rule 43 is not unconstitutional, High Court rules

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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