In need of a lifeline pending the settlement of your divorce?
South African divorce statistics are extremely high with estimates suggesting that 50% of all marriages end in divorce. Statistics have further shown that when married couples separate, a woman’s standard of living drops with approximately 25% in the first year of divorce.
In situations where the divorce is contested, the proceedings could take a long time, often a few years, to conclude leaving certain issues unresolved until then. In such instances a spouse (statistically speaking the wife) who is a homemaker may find herself without the means to provide for her living costs and those of her children.
Rule 43 of the High Court (or Rule 58 of the Magistrate’s Court if you are divorcing in the Regional Court) is a special procedure that can assist a spouse in such circumstances. This is a special mechanism whereby a spouse makes application to court for “interim” maintenance, pending the finalisation of the divorce.
This application may be brought at any stage before a final divorce order is granted and the following temporary relief may be claimed from the other spouse:
- Interim maintenance for spouse/children;
- Interim care of or contact with children;
- Enforcing certain payments eg. school fees, bond instalments, vehicle instalments, medical aid premiums, etc;
- Interim contributions towards your legal fees;
- An order for the delivery of specified movable property eg. vehicle; furniture; etc.
In terms of this application, a spouse may ask a court to order the spouse from whom relief is sought to make payments so as to cover the reasonable monthly expenses that the spouse and children born of the marriage may have. This maintenance will subsist for the duration of the divorce proceedings. The court may also order that the spouse with no income is entitled to a contribution to her legal fees. This is in line with the provisions of the Constitution to ensure that she has a fair and equal opportunity to defend her case.
WHAT IS THE PROCEDURE?
The process is designed to help the applicant in an expeditious manner. It is therefore relatively simple and involves the following steps:
- The person (Applicant) seeking the interim maintenance will serve and file with the Court a Founding Affidavit setting out the facts relating to the divorce as well as the reasons why they are entitled to the relief sought from the other spouse (Respondent).
- The Founding Affidavit is accompanied by a notice requesting the Respondent to reply thereto within 10 court days of receiving it.
- The Applicant (statistically speaking this is the wife) will set out in her affidavit what she needs on a monthly basis to provide for herself and her children and will need to show the court that the spouse from whom maintenance is claimed can afford to contribute towards the maintenance.
- This calculation will be based on what she has been spending in previous months in maintaining herself and her children. This will include her reasonable expenses and luxury items are excluded from the calculation.
- The Founding Affidavit and relevant notice will be served on the Respondent.
- If the Respondent should wish to respond, he must do so by way of affidavit wherein he must provide evidence to dispute the Applicant’s claim.
- Because this application is meant to be short and quick, the affidavits served by the parties should be short and concise.
- During the hearing of the application, no oral evidence will be led and the application will be argued on the affidavits before Court.
Once the application has been heard, the judge or magistrate may make an order that it deems just under the circumstances and such order will usually remain in place until the divorce has been finalised. An aggrieved party may not appeal against an order granted in terms of Rule 43, the reason being that the order is of an interim nature designed to provide interim relief until the divorce is finalised.
The only grounds on which a party may apply to Court to vary any part of a Rule 43 order is when there has been a material change in the circumstances of either party or that of a child.
The Rule 43 procedure is a special mechanism designed to provide a party with maintenance during the interim period before the divorce is finalised. It is a mechanism holding great benefit for the applicant. However, it is important that you seek the advice of your attorney to ensure that you also avoid the potential pitfalls involved in Rule 43 applications.
This article is a general information sheet and should not be used or relied on as legal or other 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 your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)