Rule 43 and interim maintenance in divorce proceedings: High Court

Lengthy divorce proceedings that drag on for months can sometimes negatively affect one spouse’s financial abilities as litigation and the associated legal-, experts -, and advocates’ fees are expensive. Disputes regarding the divisions of the estate, maintenance, the care and contact of the minor children, calculation of the accrual and the legal cost can cause the divorce to drag on for years to come.

Furthermore, to complicate the matter, one spouse can also be the typical “stay-at-home-mom” without any income and dependent on the other wealthier spouse, usually the husband, leaving them destitute and at the mercy of the Court. Therefore, the legislature created a mechanism that can be used to force the wealthier spouse to support the other spouse financially during the divorce process to ensure fairness in the process. This ensures that one spouse doesn’t gain the upper hand against the other in the divorce and ancillary proceedings.

Applications in terms of Rule 43 of the Uniform Rules of Court are usually brought for interim relief during divorce proceedings to ensure an equal playing field. The type of relief that can be sought is:

Spousal and child maintenance pendente lite;
An order for a financial contribution towards the legal fees of the other spouse;
Interim care and contact of a minor child, and;
The enforcement of various payments, such as bond payments on the marital home, motor vehicles, the school fees of the children, medical aid contributions for the other spouse and the children, payments of deposits for new accommodation, and the relocation costs associated thereof;

By creating this mechanism, the legislature ensured expeditious and inexpensive adjudication of the issue listed above by a Court. Our Courts have expressed their view that applications of this sort should not be lengthy and unnecessarily complicated as this would constitute an abuse of process. Read here a matter adjudicated by Judge Mark Sher:

Rule 43 addresses many of the main issues of the divorce action initially but will untimely be dealt with by the Court later. An extremely angry and bitter-driven divorce can take years to finalise. Therefore, there is a need for relief for one spouse in the interim should it be required.

In terms of the right to equality in terms of the South African Constitution, the divorcing spouse who has no source of income is entitled to a contribution towards her legal costs to ensure she has an equal opportunity to defend and present her case.

Considering the circumstances of the matter, this type of application can be brought:

Before the issuing of the divorce summons.
Simultaneously with the issuing of the divorce summons; or
After a notice of intention to defend is received by the other spouse.

Who can claim?

An applicant is entitled to reasonable maintenance in the interim, depending on the parties’ standard of living concerned, but not to luxuries even if the other spouse is very wealthy. The applicant must satisfy the Court that he/she has insufficient financial means and that the other spouse does have the financial means to satisfy the applicant’s claims.

What is the procedure?

The spouse issuing the application for the interim relief, being the applicant, will issue and serve a notice of motion accompanied by a founding affidavit, setting out the facts of the divorce matter and on which grounds the applicant believes that he/she is entitled to the relief claimed from the other spouse. (The respondent).

The applicant will need corroborating documentation to be successful with a rule 43 application, which includes

Schedules regarding the parties’ income, i.e., the financial ability of the one party and the need on the other side; and
A list of expected expenses of the applicant, which includes the minor children.

The respondent will be required to file his reply within 10 days from the date he/she received the application, and after that, the registrar will set the matter down for hearing.

At the hearing, the legal representatives will argue the facts of the matter by applying legislation and relevant case law.

Contribution to legal cost:

Adjudicating the issue of legal cost pending the divorce outcome, the courts must ensure that the applicant can present and litigate their matter on the same scale as the respondents do or intend to litigate.

In the matter of AF v MF, the Court held that when determining the contribution to be made by the other spouse towards the legal cost, the Court can consider the amount of legal cost already incurred, including debt incurred, to obtain proper legal representation.

Case Law:

Litigation can be conducted luxuriously or economically. In Glazer v Glazer 1959 (3) 928 (W) on page 928, A-C Williamson J said: “I do not say that she is entitled to every luxurious expense in litigation, but she is entitled to litigate upon the basis you would expect rich people to litigate. She is the wife of a rich man who is obviously going to litigate against her on a luxurious basis. In this comparatively simple preliminary application, he has appeared through senior counsel and junior counsel. I think she is entitled to litigate upon somewhat the same sort of scale as that upon which he can be expected to litigate”.

In Nicholson v Nicholson 1998 (1) SA 48 at page 50C-E, Wunsh J said the following: “The question to be considered is what the applicant needs for reasonable proceedings. The cases were reviewed in Dodo v Dodo 1990 (2) SA 77 (W). The applicant is entitled, if the respondent has the means and she does not have them, to be placed in the position adequately to present her case, relevant factors being the scale on which the respondent is litigating and the scale on which the applicant intends litigating (I would have qualified this by reference to what is reasonable having regard to what is involved in the case), with due regard being had to the respondent’s financial position.”

Conclusion

As a starting point, always ensure that you instruct a Family Law Attorney to advise you on your divorce and the issuing of an rule 43 application, even in instances where you have no money and your spouse is wealthy. You also have the right to be heard in court and enforce your rights.

Written by Heinrich Gonzales, Director of HFG Attorneys Inc.

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 your professional adviser for specific and detailed advice.

HFG Attorneys in Paarl, Western Cape, specialises in four main areas, including family law, general litigation, criminal defence and firearm law.