THE RULE 43 APPLICATION
FAMILY LAW - THE RULE 43 APPLICATION
The Rule 43 (Rule 58 in Regional Courts) Application is where a party in an opposed/contested divorce proceedings (please see our article - Divorce in South Africa) approaches the High Court for urgent interim relief pending the finalisation of a divorce, which at times, can be years down the line. Such delays may be caused by inadequate resources available to the court, the number of divorce matters heard or rather, to be heard in court and/or delays with the offices of the Family Advocate.
The Rule 43 provides an interim remedy to assist an applicant to obtain relief speedily and expeditiously in respect of interim care, residency and contact with the children. This application is usually brought by the party who is more financially vulnerable in the marital relationship and is used, inter alia, to maintain themselves and/or the children born from the marriage. Accordingly, the interim relief sought would essentially be related to the following:
Maintenance for the applicant, until such time as the divorce proceedings have been finalised and settlement has been reached between the parties and/or the court makes an order regarding the aspect;
Legal Fees in the divorce proceedings, such as those already incurred and to be incurred in future;
Enforcement of certain payments, such as vehicles, school fees, medical aid premiums, relocation costs, etc.;
Care for the minor children; and
Contact with the minor children, either interim custody or interim access to the minor children.
What is important to note when applying for such interim relief, is that the relief sought should be for necessary living expenses and not to be used for luxurious expenses which were once enjoyed in the marriage. The process will involve both parties having to disclose their financial position together with supplying supporting documents, which in effect, will provide a detailed account of each parties financial position to the court under oath.
Accordingly, with both parties financial disclosure, the court will be able to establish the financial capabilities of both parties and will assess each parties respective means against the “standard of living” enjoyed by the applicant before the relief was sought. The courts will also take into account the nature of the proceedings, the scale upon which the other party (Respondent) is litigating and the scale upon which the Applicant is litigating whilst having regard to the Respondents Financial position before granting any order.
Because of its very nature, the Rule 43 order cannot be appealed and comes to an end upon finalisation of the divorce proceedings. Once a Rule 43 order is granted, the only way to vary the order is to apply for amendment of the order in court. Accordingly, the party seeking amendment has to prove that their respective circumstances have changed (i.e. loss of employment) which will be taken into the courts consideration when considering the amendment of an order.
The Rule 43 order can be a lifesaver for many whether it be for maintenance or contact with your children, it is paramount that you have experienced litigants at your corner, who will assist you in obtaining the interim relief required and enforce your rights accordingly.
Philip Da Silva