Rule 43 Applications & Interim Maintenance

Not all divorces are amicable and settled quickly. Sometimes a divorce can take years to finalise. During this period, the parties may not see eye to eye and have begun living separately, but one spouse requires certain aspects to that are in dispute in the divorce to be decided upon immediately. In these cases, a spouse can approach the court for an interim order in terms of Rule 43 for the High Court and Rule 58 for the Regional Magistrate’s Court.

An interim order means that a Judge/Magistrate has provided interim relief to a spouse until the divorce can be finalised. There are various situations in which a court can provide interim relief for. They are:

1. Maintenance for minor children
2. Spousal maintenance
3. Care and contact of the minor children
4. Assistance with legal costs
5. Delivery of movable assets such as a motor vehicle, furniture etc.
6. Payments for certain debts such as a mortgage bond, motor vehicle loans, school fees, medical aid etc.

Such an application can be brought to the court during various phases of the divorce. It can be brought together with the issuing of the summons or once a Notice of Intention to Defend has been served and filed.

Approaching the court for interim relief should not be taken lightly or done in every situation. Each situation is unique and there needs to be valid reasons for requesting interim relief from the court.

This type of application is brought by way of Notice to the other party and has a founding affidavit annexed to it. The founding affidavit will be deposed to by the Applicant. The applicant will have to set out the reasons as to why he/she requires the interim relief sought. It is important to set out your reasons clearly and concisely as the court will decide whether interim relief is granted based solely on the papers before it. A party cannot produce oral evidence on the day of hearing. The application should not go into unnecessary detail as this will frustrate the court as well as the opposition, if any.

The following can be considered as good reasons:

• Where one spouse has relied on the other spouse for financial support and cannot support themselves without the other spouses assistance
• There are minor children born from the marriage and one spouse is refusing to contribute to their reasonable needs.
• One spouse is refusing the other spouse care and contact to the minor children
• One spouse earns considerably less than the other and cannot afford legal representation and/or is excluded from obtaining free legal assistance

These situations are not the only situations in which interim relief can be sought. It is best to consult with a legal representative and find out whether you are able to approach the court for interim relief.

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