When it comes to defending a Rule 43 application
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Rule 43 Applications and Interim Maintenance
When a divorce is taking a long time to finalise or when one of the spouses is a homemaker with no income, the law provides a mechanism that can be used to assist spouses during a divorce to provide for the interim period until the divorce is finalised. Rule 43 of the High Court and rule 58 of the magistrate’s court provide an interim measure to help an applicant quickly and with minimal legal costs. In the law, this is called interim relief. Rule 43/58 can be used for one or more of the following:
Rule 43/58 deals with many of the issues that will ultimately be dealt with in the final divorce action, but is an interim solution. An extremely acrimonious divorce can take years to finalise and spouses need to be safeguarded during the divorce process.
In terms of the equality provisions in the Constitution, a divorcing wife who has no income is entitled to a contribution to her legal costs to ensure she has an equal opportunity to defend her case.
Depending on the circumstances, such an application can be brought:
Who can claim?
An applicant is entitled to interim relief depending on the living standards of the parties. In applications of this nature, an applicant must show that he/she has insufficient means and that the respondent can afford to meet the amounts being sought.
Where an applicant claims a contribution towards his/her legal costs, the following principles will apply:
Procedure to obtain interim relief
The spouse seeking an interim relief order (the applicant) will file a notice and affidavit (referred to as a founding affidavit) with the court setting out the facts relating to the divorce and why the spouse is of the opinion that he/she is entitled to relief from the spouse against whom relief is sought (the respondent).
The applicant will need certain prescribed documentation to lodge an application for interim relief, including:
The spirit of rule 43/58 demands that the applicant provide a very brief, succinct statement of the reasons why he/she is asking for the relief claimed and that the respondent supply an equally succinct reply. The court must then to do its best to arrive expeditiously at a decision. Because our courts see this rule as an expedient process, a party may object when the supporting documentation used in the application are too voluminous. At the hearing of the rule 43/58 application, no oral evidence is given and the application is argued based on the documentation before the court. The judge or magistrate will make an order as he/she deems appropriate under the circumstances.
It is up to the respondent to provide the court with evidence that disputes the applicant’s claim, as the case may be. If the respondent does not do so, the court is entitled to infer from the evidence at hand that he/she can afford to pay the interim relief.
If the application is unopposed within the 10 days given to the respondent to reply, it may be placed on the court roll. An attorney may appear on behalf of the applicant to brief the court and argue the application. Once the court grants the order, it must be served on the respondent as soon as it is received from the court. If rule 43/58 is argued on an opposed basis, the respondent must file an opposing affidavit and may also bring a counter application, for example requesting an interim order for care of and contact with the children.
- interim care or contact with the child;
- maintenance for the wife and/or children;
- enforcing certain payments, such as for the bond on the matrimonial home, vehicles, school fees, medical aid premiums and even deposits on new accommodation and relocation costs;
- interim contribution towards the costs of the divorce and legal fees; and/or
- an order for delivery of a car, furniture, etc.
Rule 43/58 deals with many of the issues that will ultimately be dealt with in the final divorce action, but is an interim solution. An extremely acrimonious divorce can take years to finalise and spouses need to be safeguarded during the divorce process.
In terms of the equality provisions in the Constitution, a divorcing wife who has no income is entitled to a contribution to her legal costs to ensure she has an equal opportunity to defend her case.
Depending on the circumstances, such an application can be brought:
- before issue of the summons;
- simultaneously with the issuing of the summons; or
- after a notice of intention to defend is received.
Who can claim?
An applicant is entitled to interim relief depending on the living standards of the parties. In applications of this nature, an applicant must show that he/she has insufficient means and that the respondent can afford to meet the amounts being sought.
Where an applicant claims a contribution towards his/her legal costs, the following principles will apply:
- The test to be applied in considering the amount is that the applicant should be placed in a position to adequately present his/her case.
- The fact that the respondent is wealthy does not entitle the applicant to unlimited spending, there being a difference between what he/she wants and what he/she needs.
- What is ‘adequate’ depends on the nature of the litigation, the scale on which the respondent is litigating and the scale upon which he/she intends to litigate, with due regard being given to the respondent’s financial position.
- The applicant is not entitled to all his/her costs but merely a ‘contribution towards’ them. An applicant may lodge further applications later on in the process for his/her legal costs, including costs for each day of the trial.
- The contribution is not limited to disbursements only and may include reasonable attorneys’ reasonable.
Procedure to obtain interim relief
The spouse seeking an interim relief order (the applicant) will file a notice and affidavit (referred to as a founding affidavit) with the court setting out the facts relating to the divorce and why the spouse is of the opinion that he/she is entitled to relief from the spouse against whom relief is sought (the respondent).
The applicant will need certain prescribed documentation to lodge an application for interim relief, including:
- a notice in terms of rule 43/58, requesting the respondent to file an opposing affidavit within 10 days;
- an affidavit accompanying the rule 43/58 notice; and
- annexures proving income, expenses, assets, etc.
The spirit of rule 43/58 demands that the applicant provide a very brief, succinct statement of the reasons why he/she is asking for the relief claimed and that the respondent supply an equally succinct reply. The court must then to do its best to arrive expeditiously at a decision. Because our courts see this rule as an expedient process, a party may object when the supporting documentation used in the application are too voluminous. At the hearing of the rule 43/58 application, no oral evidence is given and the application is argued based on the documentation before the court. The judge or magistrate will make an order as he/she deems appropriate under the circumstances.
It is up to the respondent to provide the court with evidence that disputes the applicant’s claim, as the case may be. If the respondent does not do so, the court is entitled to infer from the evidence at hand that he/she can afford to pay the interim relief.
If the application is unopposed within the 10 days given to the respondent to reply, it may be placed on the court roll. An attorney may appear on behalf of the applicant to brief the court and argue the application. Once the court grants the order, it must be served on the respondent as soon as it is received from the court. If rule 43/58 is argued on an opposed basis, the respondent must file an opposing affidavit and may also bring a counter application, for example requesting an interim order for care of and contact with the children.
