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Divorce & Family Law

Divorce & Family Law

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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.

Bailey Haynes Inc. - Divorce Lawyers in Cape Town

Our Divorce Lawyers in Cape Town provide expert legal advice and can assist with all matters relating to divorce, family law and maintenance. Contact us.

Rule 43 & Interim Maintenance FAQs

Yes, a Rule 43 order can be appealed or varied if there are significant changes in circumstances or if the order was granted based on incorrect information. However, appeals are limited and should be discussed with a legal professional.

To file a Rule 43 application, you must prepare an affidavit detailing the relief sought and the reasons for it. This is filed with the court, and a copy is served on the other spouse, who has the opportunity to respond. It's advisable to have a lawyer assist with this process.

Interim maintenance is calculated based on the reasonable needs of the spouse and children and the financial capabilities of the other spouse. The court considers factors like income, expenditure, standard of living, and the needs of the children.

The time frame for a decision on a Rule 43 application can vary but typically takes a few weeks to a few months from the date of filing, depending on the court's schedule and the specifics of the case.

Yes, Rule 43 applications are specific to divorces processed in the High Court. For divorces in the Magistrates' Courts or Family Courts, similar relief can be sought under Section 6 of the Maintenance Act.

Once the divorce is finalised, the Rule 43 order is superseded by the final divorce order. The final order will detail permanent arrangements for maintenance, custody, and access.

If a spouse disobeys a Rule 43 order, the aggrieved party can approach the court for enforcement of the order. The court may take various actions, including garnishing wages or holding the non-compliant spouse in contempt of court.

A Rule 43 application is a procedure in South African High Courts allowing a spouse to seek interim relief during divorce proceedings. This includes interim maintenance for the spouse and children, contributions to legal costs, and interim care or contact with the children.

Under Rule 43, you can seek:

  • Interim maintenance for a spouse and/or children,
  • A contribution towards legal costs of the divorce,
  • Interim custody or regulated contact with children.

A Rule 43 application can be filed after divorce proceedings have commenced but before they have been finalised. It is intended to provide financial support and regulate child custody and access in the interim period.



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