Written by: Kyle Janse
Date: 31 January 2025
South African law provides individuals seeking immediate financial relief following domestic disputes with two important mechanisms, namely:
- Emergency Monetary Relief in terms of the Domestic Violence Act 116 of 1998
- Interim Maintenance Applications in terms of the Uniform Rules of Courts and the Magistrates’ Court Rules.
Both mechanisms are aimed at addressing a pressing need for financial assistance following a domestic dispute; however, they differ in terms of their scope, procedural requirements, and the types of claims they address. This article aims to clarify the distinctions and potential overlap between emergency monetary relief and interim maintenance applications, as well as when they are applicable.
What Is Domestic Violence?
The Domestic Violence Act 116 of 1998 defines domestic violence as “conduct that harms or may cause imminent harm to the safety, health, or well-being of a complainant, including:
- Physical abuse
- Sexual abuse
- Emotional, verbal and psychological abuse
- Economic abuse
- Intimidation
- Harassment
- Stalking
- Damage to property
- Entry into the complainant’s residence without consent, or
- Any controlling or abusive behaviour towards a complainant.”
To invoke the Domestic Violence Act, the complainant must demonstrate that the abuse occurred within a domestic relationship, such as with:
- A spouse or partner
- A parent or family member
- By an individual with whom they share or recently shared the same residence with.
How Can You Institute A Domestic Violence Application?
Application Process:
- To apply for a protection order, the complainant must make a statement in affidavit format that sets out the domestic violence acts complained of and why they seek a protection order, as well as complete the relevant application form 2 in the presence of a commissioner of oaths.
- Thereafter, the documents must be handed to the court, which should consider the application immediately.
- If there is sufficient evidence that an act of domestic violence has occurred or may occur, the court may grant an interim (temporary) protection order.
- This interim protection order can be made a final protection order should no defence be raised or if the conduct complained of warrants such a final order.
What Is Emergency Monetary Relief?
In addition to preventing the violent acts complained of, the Domestic Violence Act 116 of 1998, in Section 7(4), provides that the court may order the guilty party to pay emergency monetary relief after considering the financial needs and resources of both parties. Emergency monetary relief is defined as “compensation for monetary losses suffered by the complainant at the time of issuing of a protection order as a result of the domestic violence” and includes:
- Loss of earnings;
- Medical and dental expenses;
- Relocation and accommodation expenses;
- Household necessities.
It is important to note that the complainant must show that the act of domestic violence has caused the occurrence of financial loss. Furthermore, emergency monetary relief cannot be sought independently and is ancillary to the protection order prohibiting the performance of the domestic violence act(s) complained of. In terms of Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2012, emergency monetary relief requires a consideration of the financial needs and resources of both parties before being granted.
How Does Emergency Monetary Relief Differ From Interim Maintenance?
While both applications aim to provide interim relief for a party in need of financial assistance, they serve different purposes:
- Emergency monetary relief is attached to a protection order and is addressed to victims of domestic violence, and the domestic violence acts complained of must have resulted in the complainant incurring a loss in financial benefits. Therefore, an act of domestic violence must be established, and the act must be linked to a financial loss.
- An interim maintenance application, on the other hand, can only be brought in divorce proceedings. The application need not be linked to a specific act, and upon divorce being instituted, the spouse needs to establish a need in the case of spousal maintenance. In the case of child maintenance, however, there is an automatic obligation on the other parent.
- An interim maintenance application, inter alia, spousal maintenance or child maintenance where one party is, or was during the marriage, in a stronger financial position than the other party and the struggling party requires immediate financial assistance.
- To qualify for interim spousal maintenance, a reciprocal duty of support as well as a clear need must be established by the claiming party. Whereas, in the case of child maintenance, there is an automatic responsibility on both parents to support their children.
- In both applications, it must be established that the other party can afford to pay the maintenance amount being sought.
- For example, a spouse forced to relocate due to domestic violence may claim relocation and accommodation costs under emergency monetary relief. By contrast, interim maintenance ensures continued financial stability for a spouse or child until the divorce is finalised.
The following table establishes the information mentioned above about important differences between emergency monetary relief and interim maintenance:
| Feature | Emergency Monetary Relief | Interim Maintenance |
| Legal Basis | Domestic Violence Act | Uniform Rules of Court / Magistrates’ Court Rules |
| Purpose | Covers losses caused by domestic violence | Covers spousal or child maintenance during divorce proceedings |
| Applicability | Attached to a domestic violence act and a protection order | Can only be claimed in divorce cases |
| Proving Need | Must prove financial loss due to domestic violence | Must prove reciprocal duty of support (spousal) or parental obligation (child) |
| Duration | Short-term relief for direct losses | Ongoing relief until the final decree of divorce |
Can You Apply For Both Interim Maintenance And Emergency Monetary Relief?
Yes, there are circumstances where a party may claim both types of relief, for example, in a scenario wherein one party has the option of claiming interim maintenance due to a pending divorce as well as emergency monetary relief, should they have a protection order against their spouse.
In Mutale v. Golder 2014, the court stated that emergency monetary relief cannot be equated to maintenance for the applicant or their child on an open-ended basis, and the relief is sought to specifically address the impact of the act. However, if a partner is forced to relocate due to domestic violence, emergency monetary relief can provide that partner with relocation or monthly accommodation costs.
Should I Apply For Emergency Monetary Relief Or Interim Maintenance?
Emergency monetary relief and interim maintenance cater to distinct circumstances within the legal framework of South Africa.
Emergency Monetary Relief: If you suffer financial losses due to domestic violence acts, such as:
- Medical bills
- Relocation costs
- Loss of income
Interim Maintenance: If you require financial support during divorce proceedings, such as:
- Spousal maintenance (if one spouse was financially dependent on the other)
- Child maintenance (automatic parental duty)
Particularly in divorce proceedings where there is also a protection order, it requires careful consideration of the particular relief sought and whether it is based on the divorce proceedings and matrimonial benefits or whether it is linked to an act of domestic violence.
The above notwithstanding, a partner may utilise both reliefs depending on the circumstances of the case. However, as noted in Mutale v. Golder 2014 above, emergency monetary relief is aimed at specific instances, and courts may be hesitant to grant these on an ongoing basis. Therefore, in divorce proceedings, it may be advisable to proceed instead with an interim maintenance application that may provide a spouse with longer temporary-term stability in order to retain their lifestyle.
Understanding the distinction between emergency monetary relief and interim maintenance is essential in choosing the appropriate legal remedy. If you require financial relief, it is crucial to seek legal advice to determine the best course of action. At Burger Huyser Attorneys, our experienced family law specialists can assist you in securing the necessary financial support during challenging times. Contact us today for expert legal guidance on divorce, domestic violence, and maintenance claims.
Contact Burger Huyser Attorneys, and book a consultation.
To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
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