RULE 43 APPLICATION FOR INTERIM RELIEF DURING DIVORCE PROCEEDINGS EXPLAINED

Written by Colleen Mechanic 

14 December 2022 

WHAT IS A RULE 43 APPLICATION?

A Rule 43 Application gives a party to an opposed divorce the opportunity to apply for interim financial assistance or contact with children pending the finalisation of the divorce (pendente lite). This application makes provision for an urgent application to be launched, in which either party to the divorce can claim:

  • maintenance during divorce proceedings for the affected spouse and/or the parties’ children;
  • interim care and contact with any children; and/or
  • a contribution towards the legal costs of the matrimonial action.

WHAT IS THE PURPOSE OF A RULE 43 APPLICATION?

A Rule 43 application is meant to be a speedy and inexpensive legal remedy. This remedy is primarily for the benefit of women and children, in recognition of the fact that women are often left to care for the children during divorce proceedings and are often less financially secure than their husbands.

Sadly, spouses sometimes try to exert control over the divorce proceedings by using either their children or the other spouse’s financial challenges as leverage. Rule 43 Orders are often put in place to protect a dependent spouse where their wealthy spouse would terminate their financial support and to ensure that neither spouse unjustifiably withholds access to or contact with the couple’s children.

Rule 43 orders also serve to ‘level the playing field’, by ordering wealthier spouses to cover some of their dependent spouse’s legal costs, allowing both spouses to present their cases to Court at the same level.

WHAT PROCESS IS FOLLOWED IN A RULE 43 APPLICATION?

The Rule 43 application process is relatively straightforward. The applicant (the party applying for relief) will draft a Notice of Motion, which is a legal document that outlines the applicant’s claims and officially requests that the Court grant their request and make the application an Order of the Court. The Notice of Motion is supported by a Founding Affidavit, which is drafted in accordance with the applicant’s personal knowledge and the facts of the matter. After submission of the aforementioned documents, the Court will issue the Rule 43 application and may be requested to allocate a Court date for the hearing.

The Rule 43 application is served on the respondent (the party from whom relief is required), who must indicate whether they will oppose the application. If the respondent chooses to oppose the application, they need to file a Replying Affidavit, which sets out their side of the story. No further affidavits are required to be filed, unless the Court requests this or grants permission, upon request by one of the parties.

ARE THERE ANY SPECIAL CONSIDERATIONS APPLICABLE WHEN CONSIDERING A RULE 43 ORDER?

The Court requires the Rule 43 application to be short and concise. Previously, South African Courts enforced this requirement by dismissing applications deemed too prolix, which is defined as “using or containing too many words; tediously lengthy.” Although this dismissal has been disallowed, the Courts can still strike out irrelevant averments from affidavits and use an appropriate cost order to make their dissatisfaction known.

WHICH FACTORS ARE CONSIDERED IN A RULE 43 APPLICATION?

Factors to be considered by the Court in a Rule 43 application include:

  • the parties’ existing or prospective means;
  • the parties’ respective earning capacities;
  • the parties’ financial needs and obligations;
  • the parties’ ages;
  • the duration of the marriage;
  • the parties’ standard of living prior to divorce; and
  • any other relevant factor that the Court feels should be taken into account.

WHAT CAN BE CLAIMED FOR MAINTENANCE DURING DIVORCE PROCEEDINGS?

In terms of the common law, spouses have a duty to support each other and to maintain their child(ren). In the matter of PM v MM heard under case no. 27380/2021, for example, the Court heard an application requesting, inter alia, an order for the respondent to pay maintenance to the applicant. The applicant claimed that the respondent had a duty to maintain him since he was unemployed, and without this relief, he could not afford to pay for food or accommodation. The respondent argued that the amount requested was unreasonable as it amounted to half her salary and she barely earned enough to support herself and their grandchildren. Considering the applicant’s actual and reasonable maintenance needs, the Judge pronounced that costs such as medical aid and email hosting were not needs but luxuries. He agreed that the applicant could not afford to maintain their grandchildren, as well as herself.

As far as the maintenance to be provided by parents in respect of their child, the extent of the maintenance depends on the relative means and circumstances of each parent as well as the child’s reasonable maintenance needs. Thus, the Rule 43 proceedings can be used to claim payment of the mortgage bond or rent, medical expenses and/or school fees. The claim’s reasonableness is determined by taking into account the parties’ marital standard of living, the applicant’s actual and reasonable requirements and the respondent’s capacity to meet such requirements.

The duty to maintain does not terminate automatically upon the child reaching maturity but continues for as long as the child needs support and the parent(s) are able to pay. For example, in the matter of LMTM v TMM, heard under case no. 5169/21, the applicant claimed a contribution to the joint household expenses, given that both parties were still living together, together with half of the costs of their youngest, partially dependent child’s medical aid. In this matter, the Judge confirmed that the applicant was entitled to this reasonable maintenance and that spouses have a duty to contribute to the joint household in accordance with their income.

WHAT CAN BE CLAIMED FOR INTERIM CARE AND CONTACT?

In the case of Theodoridou v Kewada (Case No. 16380/2019), the parties had been awarded shared residency of their minor children. In terms of this Court Order, the respondent (who remained in the former matrimonial home) was ordered to provide furnished accommodation for the applicant and children but failed to do so, causing her to face eviction. She thus brought a second Rule 43 application, requesting that the respondent either vacate the former matrimonial home or provide suitable alternative accommodation. The respondent countered that he had tendered alternative accommodation as he could no longer afford the current apartment, but this was unreasonably refused.

The Judge noted an obvious imbalance of power between the two parties, which created the risk of “polarisation through imbalance” for the children as their relationship with their mother as an equal parent would be undermined if she was forced to move to a smaller apartment. The Judge further took issue with the respondent being the one who created the eviction crisis and then trying to dictate the solution. The Judge ruled that the applicant was entitled to a standard of living commensurate with that which she previously enjoyed and that she should occupy the family home until the divorce was finalised.

In the matter of TTM v NM, heard under case no. 16305/2022, the applicant sought primary residence of their minor child and interim maintenance for herself and the minor child during the divorce proceedings. The applicant’s claims were held to be reasonable and affordable by the respondent, who was ordered to pay the maintenance requested. The Judge in this matter noted that a claim supported by reasonable and moderate details carries more weight than a claim that includes extravagant demands.

WHAT CAN BE CLAIMED IN A CLAIM FOR A CONTRIBUTION TOWARDS LEGAL COSTS?

This concept emanates from the duty of support that spouses owe each other, as well as the principle of audi alteram partem which stipulates that no order should be granted until both sides have had an adequate and equal opportunity to present their arguments. Thus, the applicant should be placed in a position to adequately prepare and present their case in the pending divorce action. The Court is obliged to consider the circumstances of the case, the financial position of the parties, and the particular issues involved in the pending litigation.

In the matter of SDL v SJ, heard under Case No. 23967/2012, the Judge summarised the principles that apply to a claim for contribution towards fees. While the applicant may not be entitled to the entirety of their costs, particularly those still to be incurred, they are entitled to costs that were reasonably required to prepare and present their case adequately up to, and including, the first day of trial. Thus, requesting a contribution for costs already incurred, interim costs, the cost of interlocutory applications, and other disputes between the parties would need to be properly justified.

WHAT PORTION OF LEGAL COSTS WILL BE COVERED IN TERMS OF A RULE 43 ORDER?

For a contribution towards costs to be granted, the nature and amount of the anticipated costs must be reasonable and may include a contribution towards the attorney’s fees and disbursements. An applicant is not, however, automatically permitted to have all their attorney’s fees and own client costs covered, or even substantially covered. Only costs reasonably and ordinarily payable as between an attorney and their own client, insofar as necessary to prepare for and conduct their pending trial, may be claimed.

The Judge further noted that, although the scale upon which the parties litigate must take account of both parties’ means, the scale upon which the opposing party is litigating is relevant, as the parties ought to have “parity of arms“. Parity of arms refers to the idea that both parties in a trial should be treated in a manner that ensures that they have an approximately equal opportunity to make their case during the course of the trial. Therefore, additional contributions may be applied for if the initial contribution proves insufficient to ensure parity of arms.

IS A RULE 43 ORDER APPEALABLE?

An order granted in a Rule 43 application cannot be appealed. This is because continuous appeals may cause substantial delays, which could prejudice children during divorce proceedings.

WHAT CAN ONE DO IF DISSATISFIED WITH A RULE 43 ORDER?

Even though a Rule 43 order may not be appealed, it may be varied (amended) if one of the spouses approaches the Court with the argument that there has been a change in the material circumstances that justifies variation.

Read our article for more information regarding when a Rule 43 can be varied: https://www.burgerhuyserattorneys.co.za/can-rule-43-court-orders-for-interim-relief-in-divorce-matters-be-amended/

Rule 43 proceedings may be utilised to provide much-needed relief during divorce proceedings, which often take longer than expected to finalise. Therefore, if you need any assistance launching or defending a Rule 43 application, please do not hesitate to contact one of Burger Huyser Attorneys’ family law specialists.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE