A Rule 43 Application in the High Court provides for urgent interim relief. Contested divorce proceedings are not only an emotional time but can also take years to be finalised. A Rule 58 Application applies to similar cases in the Regional Court.
In many instances, the party who is not the main breadwinner is left without any income and is then in a predicament in meeting there, and in some instances, their minor children’s financial needs. In this regard, he/she may apply for an interim order in terms of Rule 43.
1. What is a Rule 43 Application?
The Rule 43 Application provides for the following, which can be used to obtain an order from the relevant Court pending contested divorce litigation:
1.1 Interim maintenance for the minor children and/or one of the parties until the divorce matter is finalised;
1.2 A contribution towards legal costs of one of the parties to the divorce;
1.3 Interim care and contact with the minor children;
1.4 Interim custody of minor children.
A contribution to the party’s legal costs may include the costs to litigate on the same level as the other party, and also costs of finalising the divorce. Interim maintenance may include maintenance to pay for interim housing, school fees, matrimonial home bond payments and medical aid.
The Court will look at the financial circumstances of both the parties and will make an Order according thereto. The Court will not make an Order where luxuries are asked for in the Rule 43 application, and will only make an Order for what is essential.
In terms of the Children’s Act 38 of 2005, the terms “custody” and “contact” in any language should be interpreted to also mean “care” and “contact” as defined in the Act.
2. The Rule 43 Application Process
Only two affidavits are required to argue the matter in Court. The party seeking an interim Order, being the Applicant, will complete an affidavit which will then be lodged at Court and served on the other party. The other party, being the Respondent, will then be granted an opportunity to respond to the Applicant’s affidavit. As soon as the Respondent has served and filed his/her response to the Applicant’s affidavit, the matter is set down for argument and the Court will grant an Order which the Court deems suitable.
The Rule 43 application can be brought before issuing of summons or simultaneously with issuing of summons.
3. Things have changed, what now?
Should the circumstances of one of the parties change, the party whose circumstances has changed may then approach the relevant Court in order to amend the Order which was made previously.
Should you have any questions regarding a rule 43 application, please do not hesitate to contact our offices and schedule an appointment.