In South Africa, divorce proceedings can be lengthy and costly and some individuals struggle to cope with the costs involved. This can be especially true if the spouse is a homemaker without any income. The law provides a mechanism that can be used to provide interim relief during a divorce to assist these individuals. This can be done through Rule 43 of the High Court or Rule 58 of the Magistrate's Court, which provides a quick and cost-effective way for applicants to seek relief.
The interim relief under Rule 43/58 can be utilised for a variety of purposes, including maintenance for the spouse and the children and enforcing contributions to certain financial obligations. This could include paying for school fees, medical aid, housing and interim contributions towards the costs of the divorce. It can also be used to seek interim care or contact with the couple’s children.
The principle behind Rule 43/58 is that the marriage remains in force throughout the divorce proceedings, and the party that is more financially secure has the legal responsibility to support their spouse and minor children during the divorce. An applicant is entitled to interim relief based on the living standards of the parties. They will have to prove that they have insufficient means to maintain this standard of living and that the respondent can afford to meet the amounts being sought.
In addition to seeking interim relief during a divorce, an applicant may also claim a contribution towards their legal costs. This will depend on various factors such as the extent of the litigation and the financial position of the respondent. However, the applicant is typically not entitled to the sum of their legal costs but merely a contribution towards them.
The Application Process
When evaluating a Rule 43 application, the court considers and scrutinises the financial affairs of both parties. Each case will be evaluated based on its own merits and parties will have to supply any evidence that will be able to support their claims. The applicant must first submit a notice of motion that clearly details the relief that they are applying for. An affidavit that describes the foundation for the claims should accompany this notice of motion.
The High Court is only concerned with those expenses that provide for an individual's essential needs. The Court will therefore reject an application that seeks assistance with trivial expenses. To argue the matter in court, two affidavits are required. The applicant will complete an affidavit, which will be lodged at court and served on the other party. The respondent will then be granted an opportunity to respond to the applicant's affidavit, and as soon as the respondent has filed and served their response, the matter is set down for litigation.
The process surrounding Rule 43 of the High Court or Rule 58 of the Magistrate's Court can be challenging. In some cases, the application can be avoided altogether by entering into mediated negotiations between parties. Contact Cawood Attorneys to have a legal expert available to help you settle the matter as quickly as possible. We can assist you during negotiations or help you to draft and file the application for interim relief during a divorce. Book your appointment now and let us lighten your load during tough times.