RULE 43 APPLICATION
WHAT IS A RULE 43 INTERIM MAINTENANCE APPLICATION?
Rule 43 of the Uniform Court Rules as well as Rule 58 of the Magistrate Court Rules provides litigants in divorce proceedings with the opportunity to approach the court for an order granting interim relief pending the finalisation of a divorce. Due to congested court rolls as well as the complexity of divorce matters, contested divorces can take up to years to be finalized, generally leaving one of the parties scrambling to make ends meet.
It is also possible that one of the spouses who is a homemaker, without an alternative income, are left to meet their minor children’s needs without the means to do so. In these instances, the law makes provision to financially assist spouses until the finalisation of the divorce.
RULE 43 APPLICATION PROCEDURE IN SOUTH AFRICA
A litigant in divorce proceedings can approach the court to grant a Rule 43 order in respect of interim maintenance for minor children as well as financial aid to assist the spouse to alleviate financial needs. It can also make provision for interim care and contact with the minor children or assist the spouse who has no alternative income, with a means to contribute to her legal costs. The spouse can thus approach the court in respect of any of the following matters:
- Maintenance to be granted whilst the divorce proceedings are pending;
- a contribution towards the legal costs of a pending matrimonial action;
- interim custody of any child;
- interim access to any child.
An application in terms of rule 43 consists of a notice of motion, setting out the relief prayed for by the applicant. Annexed to the Notice of Motion, must be the applicants’ founding affidavit setting out the relief claimed for and the grounds therefor, together with a notice to the respondent. Within 10 days of receipt of the application, the respondent shall deliver his reply. Thereafter, the matter will be set down for argument, provided that both parties have received notice thereof, 10 days prior to the notice of set-down.
It is imperative to note that when there is an existing maintenance order made by the maintenance court, a party cannot approach the court in terms of Rule 43 with the purpose of overruling the maintenance order.
INSIST ON DEALING WITH EXPERIENCED INTERIM MAINTENANCE LAWYERS
It is furthermore important for legal practitioners to ensure that the application is short and to the point, as the courts have showed their displeasure with lengthy applications, stating that prolixity in a rule 43 application is considered to be an abuse of power.
At Burger Huyser Attorneys, our practitioners have substantial knowledge and experience to assist clients in ensuring that an application in respect of interim maintenance complies with the rules and practice directives of the relevant court.