Divorce may be a challenging and emotionally charged process and certain divorces may take years to finalise. Pending finalisation of a divorce, a spouse may require financial support and/or a schedule regulating contact arrangements in respect of the children and/or assistance to cover legal fees. This is when Rule 43 of the Uniform Rules of Court (High Court) becomes applicable.
What is a Rule 43 Application?
A Rule 43 application is a legal process aimed at providing interim relief for a spouse in the midst of already instituted divorce proceedings. The application provides divorcing spouses with the opportunity to approach Court and request an interim order in respect of one or more of the following aspects:
- Interim personal maintenance;
- Contribution towards legal costs of the main divorce action;
- Interim contact arrangements in respect of the child(ren);
- Interim maintenance for the child(ren).
The overall intention of a Rule 43 order is to provide temporary relief until the main divorce action is finalised. As such, a Rule 43 application cannot stand on its own and requires the foundation of an ongoing divorce process.
How Does the Rule 43 Process Work?
To initiate a Rule 43 application, the applicant (the party seeking relief and who is also a party in the main divorce action) must submit a formal Court application, together with a founding affidavit detailing the grounds for the application and the interim relief sought.
The application is then served on the respondent (the other party in the main divorce action), who has the opportunity to respond to the application within a certain period of time, in the form of an opposing affidavit. The applicant may submit a second affidavit in response the respondent’s opposing, but this is not a requirement.
Once a court date is obtained, both parties’ legal representatives will have the opportunity to present their respective client’s cases to the Court.
Rule 43 applications are dealt with on a case by case basis and the Court will ultimately consider the specific circumstances of the case, the needs of the respective parties and, if applicable, the best interest of the minor child(ren) involved.
The Court has the discretion to dismiss the application in its entirety or may grant the relief sought in the form of an interim order. This order remains in effect until the main divorce action is finalised or until further order(s) varying the initial Rule 43 order, are made by the Court.
A Rule 43 order may be varied by way of a Rule 43(6) application. The spouse instituting the Rule 43(6) application will be required to show the Court that his/her or the children’s circumstances have materially changed and that the current order ought to be amended to align with the new circumstances.
When to institute a Rule 43 application
There are various grounds for a Rule 43 application which include the following:
- One spouse, usually the breadwinner in the marital relationship, stops paying certain expenses which he or she paid during the marriage. These expenses may include mortgage bond payments, medical aid premiums and school fees.
- A spouse who is financially dependent on the other spouse during the marriage, requires financial assistance in the form of monthly maintenance payments to cover his/her living expenses. In a recent matter in the Western Cape High Court, B.R. v D.R (14189/2022), Judge Kusevitsky warned parties that a Rule 43 application is not meant to provide an interim meal ticket to a spouse who will not be able to establish a right to maintenance at the main divorce trial.
- A spouse, as the primary caregiver of the children, needs financial assistance to pay the general living expenses of the children which may include groceries, electricity and accommodation.
- A plan or schedule detailing the contact arrangements between the respective spouses and their children is required;
- Contribution towards a spouse’s legal fees of the main divorce action.
A Rule 43 application may provide relief to parties going through a divorce, at least until the main divorce is finalised. By allowing the Court to intervene and make interim orders, Rule 43 applications help to mitigate the challenges and uncertainties associated with the divorce process.
For assistance regarding the Rule 43 process, contact Christine Nell at christine@curranattorneys.co.za.
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