Written by Sarah Vyvyan-Day
2 April 2022
Applications for interim relief in divorce matters (Rule 43 Applications) pertain to interim care or contact with a child, contributions towards legal fees, the delivery of property being withheld from a spouse, as well as child maintenance arrangements. Divorce proceedings can span over months and sometimes even years, often seeing many changes in the circumstances of the parties involved over time. If changes occur during divorce proceedings, does the original Rule 43 order stand?
CAN YOU APPEAL A RULE 43 ORDER?
In S v S and Another (27 June 2019), the Constitutional Court ruled that Rule 43 orders are not appealable and, therefore, cannot be challenged based on the merits once an order has been made by the court. The court stated that the ruling was based on the need to protect the best interest of the child, as they may be prejudiced in the face of continuous appeals.
ARE RULE 43 ORDERS UNCHANGEABLE?
Although Rule 43 orders are not appealable, Rule 43(6) of the Uniform Rules of Court (rules that regulate the conduct of proceedings of the Provincial and Local Divisions of the High Court) does make provision for the variation (amendment) of such orders. According to Rule 43(6), “the court may, on the same procedure, vary (amend) its decision if a material change took place in the circumstances of either party or a child, or the contribution towards costs proving inadequate.” This allows for either party to apply to the court to vary (amend) the order based on their personal circumstances and, in this light, would allow for a party who can no longer afford to pay the interim maintenance as ordered by Rule 43 to approach the court for a variation.
WHAT NEEDS TO BE PROVEN TO AMEND A RULE 43 ORDER?
Rule 43(6) states that there must be a material change in the party’s circumstance leading to the variation being successful. Therefore, it is of paramount importance that you prove that there was a significant change in your financial circumstances and/or your or your child’s circumstances. On these grounds, you may approach the court to vary (amend) the Rule 43(6) order. It is further important to show that the matter is not close to trial or to being finalised, as the court may rule that the matter does not require its assistance due to the interim nature of Rule 43 orders.
Rule 43 applications cannot be rescinded or appealed in their entirety; however, they can be varied due to the change of circumstances of either party or the child. This change must be significant, which will make the court more likely to approve a variation because the order was not affordable, to begin with.
Should you require assistance or guidance in respect of your Rule 43 application, do not hesitate to contact one of Burger Huyser Attorneys’ branches to schedule an appointment with one of our Family Law attorneys.
For immediate assistance, please contact us at the following cell numbers: Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838; Centurion call 061 516 7117; Alberton call
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE