How to Fund Your Divorce if Your Spouse Can Outlitigate You

“For what is wedlock forced but a hell, An age of discord and continual strife?” (William Shakespeare in Henry VI Part I)

This article is a balm for anyone unfortunate enough to be stuck in an unhappy marriage full of Shakespeare’s “discord and continual strife”, yet too scared to consider divorce because of the costs. An uncontested divorce in which you agree on everything need not cost much, but it’s a very different story if you know that your spouse will fight you to the bitter end.

The hard reality is that contested divorces can be extremely expensive. But if your emotional trauma is compounded by the fact that your spouse has a lot more money than you and will use that financial strength to intimidate and outlitigate you, don’t despair!

Outgunned? “Equality of Arms” to the rescue

Enter stage left the “equality of arms” legal principle, which is aimed at ensuring that the outcome of divorce litigation is based on the merits of the case, not on one side’s financial dominance.

In other words, our law says that you should have a fair and reasonable ability to present your case without being disadvantaged because your spouse has greater financial resources. To achieve that, as the financially weaker spouse you can ask the court to order your spouse to contribute to your costs, allowing you to access proper legal advice, to negotiate fairly, to resist pressure to accept unfavourable settlement terms, and, if necessary, to proceed to trial.

What factors will the court consider?

The other side of the coin is that it’s not “open season” on your spouse’s wallet. The court will order only a contribution to costs that is reasonable and necessary considering all the factors relevant to each case, typically:

• The financial resources of both parties

• The level of complexity in the divorce case

• The anticipated expenses for proper legal representation

Bottom line: you’re automatically entitled to a contribution. You must show that you are in genuine need given your own financial situation, that your estimated costs are reasonable in relation to the complexity of the disputes between you, and that your spouse can afford it.

A recent High Court decision provides an excellent example of those principles in action.

A wealthy husband is ordered to pay R1.5 million

The couple in question were married in 2010, out of community of property with the accrual system. They lived, it seems a “lavish lifestyle characterised by frequent overseas trips and a taste for opulence” until the husband left home in 2020. Battle commenced with the wife issuing a divorce summons a few months later.

Five years on we find them locked in dispute over the true extent of the husband’s wealth, with the wife applying for a R2 million costs contribution to cover both her legal expenses and a forensic investigation into her husband’s financial affairs.

In his Financial Disclosure Form (a standard form completed by parties to a divorce) he had listed net assets of R34 million. But the Court – finding that these disclosures were “unreliable”, that he had failed to disclose the value of his shareholdings in two companies and of a property in France, and that “there are huge sums of money not being disclosed” – decided that the wife’s proposed financial investigation was justified.

Having analysed the respective financial positions of the parties and their respective abilities to cover the costs in question, and having decided that the wife could reasonably trim some of her projected expenses, the Court ordered the husband to pay her a contribution of R1.5 million.

Don’t be intimidated by a big war chest

If you are outgunned financially, you may well be entitled to ask for a contribution to your divorce costs in order to level the playing field. Ask us whether you qualify.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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