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THE IMPLICATION OF COVID-19 ON CURRENT RULE 43 AND MAINTENANCE ORDERS


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The world has found itself in an unprecedented territory. South Africa has declared a national state of disaster with the country going into complete lockdown. Sanitizers and facemasks have become the norm. Life as we know it, has changed. But what does this mean for those having to pay maintenance?   
 
It is common cause that many people have received pay-cuts, retrenchment packages and some have even lost their jobs. This is putting a strain on majority of the South African population. Even more so for people who have been ordered to pay maintenance in terms of a Rule 43 application or maintenance order.
 
Rule 43

A Rule 43 is an interlocutory application which is brought during divorce proceedings and allows for maintenance pending a divorce. The Rule 43 cannot be appealed. However, in terms of Rule 43(6):
 
“The court may, on the same procedure, vary its decision in the event of a material change taking place in the circumstances of either party of a child, or the contribution towards costs proving inadequate”.
 
The new application must be based on a material change in the circumstances subsequent to the first application - Grauman v Grauman 1984 (3) SA 477 (W); Micklem v Micklem 1988 (3) SA 259; Greenspan v Greenspan 2000 (2) SA 283 (C).
 
The question which thus remains is: what qualifies as a material change in circumstances and would a financial loss suffered due to Covid-19 and the subsequent lockdown suffice?
 
The effect the nationwide lockdown has had on people’s lives has been widespread. Many people are not earning an income, expenses remain the same, people are losing their jobs, companies are folding and there may be a reduction in salaries after the lockdown is lifted. It can most certainly be argued that any loss or change to your financial means may qualify as a material change in circumstances. However, it is necessary to bear in mind that in Rule 43(6) Applications the change/variation will need to be proved by the person alleging such change i.e. the Applicant. Bruni v Bruni [2007] 3 All SA 139 (W).
 
Maintenance Orders

In the event that a party can no longer meet their obligations in terms of a maintenance order, they may approach the High Court, Regional Court or the Maintenance Court for a variation or setting aside of a maintenance order.
 
High Court / Regional Court variations:

In terms of Section 8 of the Divorce Act 70 of 1979, the High Court/Regional Court may vary a maintenance order if the court finds there is sufficient reason to do so. The onus is on party seeking the variation to show sufficient reason for it - Pieterse v Pieterse [1965] 4 All SA 316 [T].
 
Some factors which the Court may consider when determining whether there has been sufficient reason to vary an existing order are: the income of parties (Acutt v Acutt 1990 (4) SA 873 (Z)) parties age, conduct, health and ability to support themselves (Hancock v Hancock 1957 (2) SA 500 (C)). Of most importance is the deterioration in the maintenance debtor’s financial position - here the court will establish whether the deterioration is due to circumstances beyond his control. He will need to show his inability to pay.
 
In light of the above it would appear as though a loss of income or salary reduction due to the nationwide lockdown would suffice in proving that sufficient reason exists to vary an existing maintenance order in the High Court / Regional Court.  
 
Maintenance Court variations:

Maintenance Court may vary an existing order if good cause exists. Whether or not good cause exists has to be assessed on the particular facts of each case. Roels v Roels [2003] 2 All SA 441 (C).
 
An Applicant applying for a reduction of a maintenance order would be successful if such Applicant can prove:
​
  1. A reduction in income; and
  2. The inability to pay the current maintenance amount.
 
Thus, if you can successfully show the court that you are not earning your full salary, you may be able to successfully obtain a reduction in your maintenance order.
 
What does this mean during lockdown?

The Government Gazette dated 26 March 2020 (No. 43167) provides that during lockdown, in respect to maintenance matters, only first-time applicants and those seeking to enforce an existing maintenance order may approach the maintenance court.
 
While you cannot apply for a variation of a maintenance order during lockdown, once lockdown is over you can approach the court and launch an application for a variation of an existing order should you meet the necessary requirements.

Article written by Jesse Kriel and Jade Jason - Family Law Department Maurice Phillips Wisenberg

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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Custody and Coronavirus
    • Relocation and Child Abduction >
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • Parental Alienation
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • Family Law Newsletter March 2017
    • September 2016 Family Law Newsletter
    • Family Law Newsletter 2017 1
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities