THE IMPLICATION OF COVID-19 ON CURRENT RULE 43 AND MAINTENANCE ORDERS
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:
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
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:
- A reduction in income; and
- 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