Court rejects Swiss husband’s attempt to evade maintenance by claiming poverty

To pay maintenance to a divorcing spouse - even if it is only interim payments as per a court order pending a final divorce - is a legal obligation, the court reminded a husband based in Switzerland, who blamed a skiing accident for his non-payment.

The Western Cape High Court did not accept his excuses and ordered the man to pay R277 000 in arrear maintenance to his wife. This must be done within 15 days and if he failed, his wife was granted permission to immediately launch contempt of court proceedings against him.

The wife, who lives in Cape Town, turned to court as she wanted her husband, from whom she is not yet divorced, to honour his maintenance obligations as per a previous court order. The court, in dealing with the matter, remarked that “we must remind ourselves" that one of the legal consequences of marriage, whether in or out of community of property, is that the spouses owe each other a reciprocal duty of maintenance according to their means.

The scale on which support must be contributed depends upon the social position, financial means and style of living chosen by the spouse.

The husband was earlier ordered to pay R31 773.70 per month, effective from September 1, 2022, towards his wife’s upkeep, pending their divorce. While he did pay for a while, he simply stopped the payments.

The husband disputed that he was in wilful default in not complying with the court order. He explained that in January 2023, while skiing with his family in Grindelwald, he had an accident as he fell and hit his head. He was hospitalised the same day and was discharged the following day. Pursuant to the injury, he felt confused and disoriented and had a headache. He subsequently collapsed and was taken to the hospital.

At the hospital, he was later informed that he had suffered a coronary stroke and that the stroke was likely to have been caused by his fall, which he experienced during the skiing trip. According to the husband, he was in a coma for three days. The respondent asserted that he could not return to work.

The Child and Adult Protection Authorities in Switzerland meanwhile appointed a legal guardian to assist the husband with managing his affairs. The Swiss Accident Insurance Organisation, however, until the end of June this year, issued him with a monthly disability income of about 80% of his previous salary. But, the husband said, he must pay his own expenses from this money.

The court questioned why he never told his curator, who managed his affairs, that he had to pay maintenance to his wife, as per a court order. The court said, as pointed out by his wife, the husband had enough money as the funds are in Swiss francs, one of the strongest currencies in the world.

The husband could have easily made payments to the applicant in rands, which is weaker than the Swiss franc, it said. But what was most concerning to the court was the fact the husband pleaded poverty, while it came to light that he was a beneficiary of a R20.3 million trust fund.

“The respondent (husband) is fully capable of accessing his portion of these funds to pay maintenance to the applicant as per the court order,” the judge said.

Cape Times