Interim divorce orders cannot be appealed, the Constitutional Court rules

During a divorce, a judge may order one of the spouses to pay maintenance while the divorce is being finalised, known as an interim order. Sometimes spouses file an appeal against these interim rulings, causing delays and leaving their ex-partner and children without funds to support themselves.

This technique has now been prohibited by the Constitutional Court when it affirmed the prohibition on appealing an order for interim maintenance while divorce procedures are continuing.

A person going through a divorce may sue their spouse for interim support, either for themselves or their children, under Rule 43 of the High Court Rules. Additionally, it entitles the individual to seek custody of their children pending the outcome of divorce proceedings.

A person may not challenge a Rule 43 order under the Superior Courts Act. Once a Rule 43 order is given, the losing party is obligated to comply with it until the divorce processes are over.

This prohibition on appeals was challenged however at the Constitutional Court in 2019 and since Stats SA suggests that there were as many as 25 326 divorce court orders in 2016 in most of which one of the spouses applied for a Rule 43 order, that judgment had significant implications for many families.

The parties in the case under discussion got married in 2008 and in September 2016, when the couple had had three children, aged five, 11 and 15, the husband filed for divorce.

Pending the finalisation of the divorce, the husband (Mr X) approached the Court for a Rule 43 order, requesting interim custody of the children and offered to pay maintenance of R12,000 per month to “Mrs X”.

She opposed his application, arguing that firstly, she (and not him), should be awarded interim custody of the children and secondly, that the court should award maintenance of R60,353 per month to her. This included payments on her luxury vehicle, as well as for her and the minor children to be retained on his comprehensive medical aid scheme.

Since Mrs X filed the opposing application late, and it was thus not considered as evidence by the Court, Mr X was awarded custody but was nevertheless ordered to pay her R40,000 per month in maintenance.

Mr X appealed, claiming the maintenance was excessive especially since Mrs X lived with her new partner and was partly supported by the latter, a factor he contended that the court should have considered.

Rule 43 orders are not appealable, the court said however, and serves to protect children whose rights may be jeopardised if such orders are continuously appealed.

Mr X maintained that the prohibition was unlawful because it went against the best interests of the children; he was after all the one responsible for the kids, not Mrs X. He also claimed that it violated his equality and access to courts rights.

His petition to the Supreme Court of Appeal was denied though and consequently he appealed to the Constitutional Court.

The Constitutional Court mainly had to decide whether the prohibition on appealing Rule 43 orders was constitutional. The process firstly addressed if the prohibition violates the best interests of the child, secondly, whether it infringes the right to equal protection of the law and thirdly, whether it infringes the right to access courts.

Arguments by the Centre for Child Law, as a friend of the court in his support that several rights of minor children could potentially be infringed, was rejected though and the Court found that enabling appeals of rule 43 orders could cause problems and considerable delays for spouses and children receiving maintenance, leaving them impoverished.

A person receiving maintenance is usually the one looking after the children, and the more vulnerable spouse.

The Court declared that any Rule 43 order not serving the best interests of the child could be addressed on a case by case basis and the court could be approached to vary an interim order.

The court found that the prohibition has a legitimate purpose since Rule 43 serves an important purpose in providing a speedy and inexpensive remedy, mainly for the benefit of women and children and that enabling an appeal would undermine that purpose.

Regarding access to courts, it found that interim orders can only be appealed if the interests of justice permit and that a person does not have the right to appeal every order, especially interim ones.

It further found that Rule 43 did not prevent an applicant from approaching the court again. A person like Mr X could approach the court to vary its original order in case of a change in “material circumstances”, thus this part of the rule mitigates against any potential injustice.

On these accounts the Constitutional Court said that the prohibition against Rule 43 orders’ appeals did not infringe any constitutional rights. The Court dismissed the appeal and awarded costs against Mr X.

The court however conceded that Rule 43 may require revision to enable a variation of an order in “exceptional circumstances” on top of a material change of circumstances.

This ruling was important for divorce litigants who may be dissatisfied with a Rule 43 order, since they may not appeal it. They can however apply to a court to vary an aspect of the ruling if there has been a material change of circumstances.

It should be noted that only the prohibition of appealing Rule 43 was before the court and not the constitutionality of the rule itself, which suggests that litigants in future cases may well be able to challenge the constitutionality of Rule 43 successfully.