What is a Rule 43 Application?
A Rule 43 Application provides for the following, which can be used to obtain an order from the relevant court pending contested divorce litigation:
a) Interim maintenance for the minor children and/or one of the parties until the divorce matter is finalized;
b) A contribution towards legal costs of one of the parties to the divorce;
c) Interim care and contact with the minor children;
d) Interim custody of minor children.
A contribution to the other party’s legal costs may include the costs to litigate on the same level as the other party, and costs of finalizing the divorce. Interim maintenance may include maintenance to pay for interim housing, school fees, matrimonial home bond payments and medical aid.
The Court looks at the financial circumstances of both the parties and then make an Order accordingly. The Court will not make an Order where luxuries are asked for in the Rule 43 application and will only make an Order for what is essential.
In terms of the Children’s Act 38 of 2005, the terms “custody” and “contact” in any language should be interpreted to also mean “care” and “contact” as defined in the Act. 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 finalization 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 finalization of the divorce using the Rule 43 application procedure.
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 as mentioned above.
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, annexures proving income, expenses, and assets. 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.
A Rule 43 application 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 finalize, 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.
Appeals may not be brought against Rule 43 for interim maintenance. It can only be amended where there is an actual change in the financial position of the person who needs to pay maintenance and the burden of proof will then be on the person making the allegation.
Rule 43 was instituted precisely to provide quick and inexpensive solutions, primarily to the benefit of the spouse and children who have urgent interim needs. Rule 43 therefore is an inexpensive solution to assist them with maintenance pending the possibly long, drawn out divorce case. The fact that appeal may not be brought against this Rule is exactly to prevent delays and unnecessary costs and to then allow appeal would defeat the entire purpose of this rule.
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.
Contribution to Cost Applications
Often one party, usually the wife, will not be in a position to institute or defend a divorce due to a lack of financial means. Rule 43(1) and (6) provides a mechanism whereby a party can claim a contribution to legal costs at the commencement or prior to the divorce proceedings and two or more such applications can be made before the first date of trial.
An applicant must be put into a position to present his/her case adequately and if one party for example embarked on litigation on a luxurious scale by payingextravagant amounts to his attorneys a court will assist the other party. ln exercising its discretion in the determination of the amount of the contribution towards costs to be awarded, the court is bound by section 9(1) of the Constitution, Act 108 of 1996, to guarantee both parties the right to equality before the law and equal protection of the law - the equality of arms. 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 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.
The scale upon which an applicant is entitled to litigate is a scale equivalent also with the means of the parties. In Nicholson v Nicholson 1998 (1) SA the court held that: “The question to be considered is what the applicant needs for reasonable proceedings. The applicant is entitled, if the respondent has the means and she does not have them, to be placed in the position adequately to present her case, relevant factors being the scale on which the respondent is litigating and the scale on which the applicant intends litigating, with due regard being had to the respondent's financial position.”
Lastly, it is 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 verboseness in a rule 43 application is an abuse of power. At Rudolf Buys and Associates Attorneys, we have substantial knowledge and experience to assist you in ensuring that an application in respect of interim maintenance complies with the rules and practice directives of the relevant court.