THE South High Court in Johannesburg has ruled against a husband's urgent application for child maintenance and shared control of rental income from his estranged wife's property, citing legal limitations and lack of evidence
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THE South High Court in Johannesburg has ruled against a husband's urgent application for child maintenance and shared control of rental income from his estranged wife's property, citing legal limitations and lack of evidence
The court ruled that the relief sought falls outside the scope of Rule 43 proceedings and that the wife has no legal duty to support the child born outside the marriage.
The parties were married in community of property in April 2022. At the time of the marriage, the husband was 30 and the wife 46. No children were born of the marriage. However, the husband fathered a child with another woman in June 2025 while still married, IOL reported.
The wife instituted divorce proceedings in September 2025, citing the husband’s extramarital affair and the birth of the child. Despite the pending divorce, the husband continues to live in the marital home and relies on food purchased by the wife.
Both parties are currently unemployed. The wife’s only income comes from rental cottages located on property in Germiston that she owned before the marriage. Although eight cottages exist on the property and could generate approximately R24,500 monthly when fully occupied, current rental income stands at about R7,200 per month.
The husband sought two forms of interim relief, R4,500 per month in maintenance for his child as well as shared control of rental income generated from the cottages on the marital property.
He argued that he previously supported the child and the child’s mother using rental proceeds and that the wife’s decision to instruct tenants to pay rent directly into her personal account deprived him of funds needed to support the child.
The court found that the primary purpose of the husband’s application was to secure financial support for his child, rather than maintenance for himself.
Acting judge DJ Smith held that the wife has no legal duty to maintain a child born to her husband outside the marriage unless she explicitly undertakes such a responsibility. The evidence showed that she had never assumed a duty of support toward the child.
The court also noted that the husband’s own needs were already being met, as he continued to live in the matrimonial home and relied on food purchased by the wife. His claim for transport expenses lacked sufficient detail and supporting evidence.
As a result, the judge ruled that the husband failed to establish a case for interim maintenance.
The court also rejected the husband’s attempt to secure shared control of the rental income. Judge Smit emphasised that Rule 43 proceedings are limited to specific interim relief such as maintenance, contributions to legal costs, and childcare arrangements.
The court held that disputes about ownership or distribution of assets within the joint estate including rental income, must be decided during the divorce trial itself.
" Therefore, I make no finding regarding the lawfulness or not of the wife’s actions in instructing the tenants to pay the rental income to her rather than into an account controlled by the husband); or whether the husband is or should be entitled to any part of this income from the joint property given the possibility of a forfeiture order which the wife asks for in the divorce. These are matters for the trial court," said the judge.