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Rule 43 Interim Relief


Rule 43 divorce South Africa, divorces
Maintenance claims pending divorce

When a divorce is taking a long time to finalise or when one of the spouses is a homemaker with no income, the law provides a mechanism that can be used to assist spouses during a divorce to provide for the interim period until the divorce is finalised. Rule 43 of the High Court and rule 58 of the magistrate’s court provide an interim measure to help an applicant quickly and with minimal legal costs. In the law, this is called interim relief. Rule 43/58 can be used for one or more of the following:

  • interim care or contact with the child;
  • maintenance for the wife and/or children;
  • enforcing certain payments, such as for the bond on the matrimonial home, vehicles, school fees, medical aid premiums and even deposits on new accommodation and relocation costs;
  • interim contribution towards the costs of the divorce and legal fees; and/or
  • an order for delivery of a car, furniture, etc.

Rule 43/58 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 finalise 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.

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. 

Procedure to obtain interim relief

The spouse seeking an interim relief order (the applicant) will file a notice and affidavit (referred to as a founding affidavit) with the court setting out the facts relating to the divorce and why the spouse is of the opinion that he/she is entitled to relief from the spouse against whom relief is sought (the respondent).

The applicant will need certain prescribed documentation to lodge an application for interim relief, including:

  • a notice in terms of rule 43/58, requesting the respondent to file an opposing affidavit within 10 days;
  • an affidavit accompanying the rule 43/58 notice; and
  • annexures proving income, expenses, assets, etc.

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 paying exorbitant 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 on 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 commensurate also with the means of the parties. People who are very rich are not expected to litigate upon the basis that they have to watch every penny that is spent in litigation. Litigation can be conducted luxuriously or economically. In Glazer v Glazer 1959 (3) 928 (W) at page 928 A-C Williamson J said: "I do not say that she is entitled to every luxurious expense in litigation, but she is entitled to litigate upon the basis you would expect rich people to litigate. She is the wife of a rich man who is obviously going to litigate against her on a luxurious basis. In this comparatively simple preliminary application he has appeared through senior counsel and junior counsel. I think she is entitled to litigate upon somewhat the same sort of scale as that upon which he can be expected to litigate".

In Nicholson v Nicholson 1998 (1) SA 48 at page 50C-E where Wunsh J said the following: “The question to be considered is what the applicant needs for reasonable proceedings. The cases were reviewed in Dodo v Dodo 1990 (2) SA 77 (W). 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 (I would have qualified this by reference to what is reasonable having regard to what is involved in the case), with due regard being had to the respondent's financial position.”

hOW TO CALCULATE MAINTENANCE, click here

More About Rule 43 Applications

Can you Appeal a Rule 43 order?

Read more

Can you apply for Legal Costs?

read more

Must a party disclose his/her finances?

read more

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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • 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 >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • 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
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
      • 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
    • Vaccinating Children Covid-19
    • Suspending Parental Rights
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Amended Bill
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • 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
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities