Written By: Anna-Mi Nel
2 February 2025
Going through a contested divorce can be emotionally and financially draining, especially when one party lacks the financial resources to continue the litigation. Fortunately, South African law provides relief in such circumstances by allowing a spouse to apply for an interim contribution toward legal costs. This ensures that both parties can litigate on an equal footing and that financial disadvantage does not force one party into an unfair settlement.
Rule 43 of the Uniform Rules of Court (for divorces pending in the High Court) and Rule 58 of the Magistrate’s Court Rules provide mechanisms for such interim relief. These rules allow a party to seek financial assistance while the divorce proceedings are ongoing, following specific financial support guidelines. However, this relief is limited and is granted only when the requesting party can demonstrate a genuine need.
This article explores the legal framework surrounding cost contributions under Rule 43 and Rule 58, the criteria for obtaining such relief, and what to expect from the process.
What Is Interim Relief?
A party involved in pending divorce proceedings may approach the court for the following types of interim relief:
- Interim care and contact arrangements: If minor children are being withheld from the party requesting such relief, the court can intervene.
- Interim spousal maintenance: If the other party has ceased their duty to maintain basic and necessary financial aid to the party requesting relief, the court may order maintenance to cover essential needs.
- Interim child maintenance: If the other party does not cater adequately or at all towards the children while the divorce is ongoing, then the court can order financial support.
- Interim relief in the form of contributing toward legal costs: If one party lacks the financial means to continue or initiate divorce proceedings, the court may order the other party to contribute.
It is important to note that any claim brought under Rule 43 or Rule 58 is not granted for luxury or extravagant expenses but is strictly limited to essential financial assistance.
What Is a Cost Contribution In An Application Under Rule 43 Or Rule 58?
A cost contribution refers to financial assistance ordered by the court, requiring one spouse to contribute to the other’s legal fees. This is based on the principle that both parties should have the means to litigate fairly.
Key principles of cost contributions:
- Already specified under the common law, a party is required to contribute towards the other’s legal costs if such party can afford it and if good cause can be shown that it is needed.
- Parties are entitled to litigate on the same level, providing that where one party’s financial status is of greater value than the other, the courts can make an order to level the playing field.
- Where a couple is married in community property, the legal costs of a divorce are deemed to be a liability of the joint estate, thus rendering a reciprocal duty on one party to contribute towards the other’s legal expenses.
- The onus is on the applicant seeking a contribution towards his or her legal cost to prove that there is a necessity for such a contribution.
How Do I Prove a Need For A Contribution Toward Legal Costs?
To successfully obtain a cost contribution under Rule 43 or Rule 58, both parties to the divorce must comply with the following:
- During divorce proceedings, the party requesting assistance with legal costs in the main divorce action must prove on application that a need exists for a cost contribution in order to continue or institute divorce proceedings.
- The party requesting assistance must formulate a reasonable cost account and attach it to the application that will be launched to the court.
- Due to the purpose of a Rule 43 or Rule 58 being an inexpensive and expedient resource, the parties are only allowed to file one affidavit setting out their claims and/or defences.
- A person opposing the application shall therefore have the opportunity to prove why the legal cost contribution sought is either unnecessary or extravagant.
What Are the Chances Of Success When Asking For a Cost Contribution?
Although each matter is considered on its own merits and circumstances, some guidelines have been provided to ascertain whether a claim for cost contribution will be successful in part or completely.
- In the matter of Greenspan vs. Greenspan [1999] JOL 5300 (C), the Honourable Judge Deputy has indicated that fees sought for legal counsel and attorneys should be restricted to small amounts, unless in exceptional circumstances.
- Courts will consider each party’s financial abilities, such as their financial status, assets and liabilities, and earning capacities, to determine a fair and just order relating to a cost contribution.
- A court is befallen with the duty to ensure that both parties embroiled in a litigious battle are on an equal level when it comes to legal resources, as far as possible. In the same breath, an order for cost contribution is not there to punish the person against whom the order is to be made.
What If the Cost Order Is Not Adequate to Pay Your Legal Costs?
Any party that is dissatisfied or not in agreement with a cost order can only vent his or her dissatisfaction during the main divorce trial proceedings. However, if one of the parties can prove that a material change in circumstances has arisen after the initial granting of a Rule 43 or Rule 58 order, that party may approach a competent court requesting an increment in the initial order based on such significant changes.
This relief is also applicable where a material change in circumstances has occurred in relation to the care and maintenance of children, the expenses and income of the parties, or any other material change considerations that the court should take into account. A party requesting another or an increased amount to be ordered in relation to a cost contribution should therefore prove that the initial amount is inadequate to finalise the divorce action.
How Does The Court Determine The Increase Of An Initial Cost Order?
The amount that has already been contributed by the other party towards the party requesting relief will be considered to determine which amount will be fair and just to increase the initial cost contribution. The court shall also take into account the status of the main action to determine the reasonable fees to get the divorce action to finalisation.
What Costs Fall Outside the Cost Contribution Claim?
A court’s discretion is widely used when considering any cost order and is dependent on each matter’s unique circumstances. By keeping this in mind, the following factors have been pointed out to consider when applying for a claim for cost contribution:
- An unreasonable delay or requested postponement sought by a party shall be for that party’s account (Kooverjee [2006] JOL 17320(c)).
- When a party is secretive regarding their financial affairs or is guilty of not disclosing adequately, costs may be granted against such party, or a claim may not succeed for a cost contribution.
- The court does not have jurisdiction to make lump sum payment orders when adjudicating over a Rule 43 or Rule 58 in that this relief is specifically limited to interim periodical payments to be made by one party to the other (Greenspan [1999] JOL 5300 (C)).
- Applicants launching an application under Rule 43 or Rule 58 are cautioned against overstating their expenses, hence inflating the legal cost required by understating their financial capability or status. Reasonable and true legal expenses should be provided at all costs.
- The court hearing the application may, in its discretion, dismiss the application for contribution of legal costs if it deems such an order fair and just.
Divorce litigation can be complex and expensive, but financial constraints should not prevent a party from obtaining legal representation and fighting for a fair outcome. If you find yourself struggling to afford legal fees while your spouse has greater financial resources, you may be entitled to a cost contribution under Rule 43 or Rule 58.
If you are currently in a divorce battle but are afraid that you are not capable of continuing the divorce and will be forced into settling due to a lack of financial aid, contact Burger Huyser Attorneys today to assist you with a possible claim for interim assistance to ensure that you are litigating on an even playing field. Our family law specialists will provide you with the necessary legal guidance to navigate the process of launching an application to ensure litigious fairness.
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:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
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