Interim Maintenance during a Divorce - Rule 43

Definition: Interim Maintenance, also known as Rule 43, is the interim relief provided to assist spouses in the interim period pending a divorce, where the homemaker has no income, or the divorce is taking a long time to finalise.

Divorce can be a stressful situation, which can seem uniquely cruel when considering instances where one spouse may be completely financially stable and the other has no income. It is not difficult to see how this imbalance can easily be exploited to exert pressure during the divorce proceedings. 

In a society where the woman is traditionally the family home maker, it is daunting to consider having insufficient funds to maintain one's household, to feed the children, pay for school fees, medical bills and legal fees.

The purpose of Interim Maintenance 

Fortunately, the law provides a specially designed mechanism that can be used in these circumstances. The Supreme Court Act of 1959 contains rules governing the issue of one spouse left without a source of income when proceeding with the act of divorce. 

Rule 43 of the High Court and Rule 58 of the Magistrate’s Court provide interim measures to help an applicant quickly and with minimal legal costs. 

This maintenance is called interim relief and may be applied for by the spouse needing maintenance assistance (applicant) for themselves or any children born during the marriage. This rule applies only when a couple are divorcing and one spouse requires interim maintenance.

Since the marriage has not yet come to an end, it is the legal duty of the more financially stable spouse (respondent) to support the other (applicant) during the divorce proceedings as the marriage remains in force. 

The interim maintenance covers the time period during the divorce process and may be applied to cover the costs of finalising the divorce.

Rule 43/58 can be used for one or more of the following: 

• Interim care or contact with the child; 
• Maintenance for the applicant and / or the children
• Enforcing certain payments (which could include: the bond for the matrimonial home, vehicles, school fees, medical aid premiums and even deposits on new accommodation and relocation costs); 
• Interim contributions towards the costs of the divorce and legal fees (Note: this will not cover all legal fees, but pay a contribution towards the fees); and or 
• An order for delivery of a car, furniture, etc. 

An extremely hostile divorce process may take years to finalise, in which case spouses need to be safeguarded during this process. Depending on the circumstances, an application for interim relief can be brought:

• Before issue of the summons; 
• Simultaneously with the issue of the summons; or 
• After a notice of intention to defend is received. 

Rule 43/58 serves another purpose: many of the issues that will be dealt with in the final divorce action are outlined and dealt with on a preliminary level in the interim solution. 

In terms of the equality provisions in the South African Constitution, an applicant spouse who has no income is entitled to a contribution to their legal costs to ensure that they have equal opportunity to defend their case. 

Also in terms of equality provisions, careful consideration is taken by the court (upon receiving adequate documentation) to determine a reasonable maintenance plan, allowing for essentials to be paid for but allotting no interim funds to any luxury, even if the respondent is extremely wealthy. 

In exercising its discretion in the determination of the amount of the contribution towards the costs to be awarded, the court is bound by Act 108 of 1996, section 9(1) of the Constitution to guarantee both parties the right to equality before the law and equal protection of the law - the equity of arms. The court thereby ensures the protection of both the applicant and respondent spouses. 

Regarding maintenance, the court will essentially look at two factors:

• The applicant spouse’s needs (and the children if relevant); and
• The respondent spouses ability to pay. 

Qualifying for Interim Maintenance

An applicant is entitled to interim relief depending on the living standards of the parties. The applicant must show that he/she has insufficient means and that the respondent can afford to meet the amounts that are sought. 

Interim Maintenance Procedure

The applicant (spouse seeking interim relief) must file a notice and an affidavit with the court setting out facts relating to the divorce, living conditions and the reason why the applicant is of the opinion that he/she is entitled to relief at this time. 

The documentation prescribed to lodge an application for interim relief includes:

• A notice in terms of rule 43/58, which requests the respondent to file an opposing affidavit within 10 days; 
• An affidavit accompanying the rule 43/58 notice; and 
• Annexures (supplementary documents) proving income, expenses, assets, etc. 

The entire application is brought to court by presenting affidavits. Each party sets out their claim in an affidavit, which are then placed before the court and argued by advocates in a hearing. 

Therefore rule 43/58 does not involve the parties appearing in court, giving evidence, or being interviewed/cross-examined. The parties need not even attend the hearing. 

The order made will reflect the standard of living of both parties before the divorce and interim maintenance will be awarded in accordance with these standards.

Van Deventer & Van Deventer Incorporated - Divorce Attorneys South Africa 

For expert legal advice and more information, contact a divorce attorney at Van Deventer & Van Deventer Incorporated today. 
 

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