By Yasmina Griesel 

Category: Family Law

In the circumstance where a couple is going through a divorce procedure and there is a financial dependency on one spouse by the other, it can be said that one spouse may have a financial advantage which can easily be abused in the divorce process. So what recourse does the dependent spouse have available? The dependent spouse will have to approach a competent court with a Rule 43 application (Uniform Rules of Court, 26 June 2009).

What is a Rule 43 Application?  

Rule 43 of the Uniform Rules of Court (26 June 2009) provides for a spouse seeking interim relief, in respect to matrimonial matters, to bring an application in the High Court for the maintenance of a dependent spouse (and their children) pending the finalisation of the divorce proceeding. In the Magistrate Court, this is referred to as a Rule 58 of the Magistrate Court Rules. Rule 43 (and Rule 58), and the reliefs offered are only applicable to divorcing couples where one spouse (and/or their children) needs financial assistance from the other because they are unable to receive income or have very limited means of income. The dependent spouse can bring an application in terms of these Rules at any time before the divorce summons have been issued or served, or it can be brought at the same time as the divorce summons, or after the action has been defended.  

The Court will assess the needs of the dependent spouse (and/or their children) and award an amount which will be payable by the financially stable spouse: this is because the duty to support is still in force until the dissolution of the marriage. Like all maintenance enquiries, the Court’s finding will be based on the necessities of the applicant spouse (and the children), measured against the affordability of the financially stable spouse, based on the parties respective living standards. 

What does interim Maintence Cover?

A Rule 43 (and Rule 58) can prove to be useful to deal with preliminary concerns that will likely be elaborated in the divorce proceeding, and to obtain interim orders in respect of those concerns: for example, spouses can address any issues relating to interim contact with their children (if any), to enforce payments of any current and existing expenses (like rental payment), and also to make interim contributions to legal fees. The application can also be used to seek an order directing the return or delivery of certain assets like cars, or clothes.   

Conclusion  

The dependent spouse may request financial assistance for their monthly necessities, including but not limited to food, clothing, insurance, security cover, household maintenance, school fees (where applicable), medical aid and even legal fees for the divorce. This application is a reasonable and practical exercise because divorces can generally get acrimonious and litigious, and in some cases, they can take years before they are finalised. The application is a mechanism that safeguards the interest of all parties and ensures equal protection under section 9(1) of the Constitution of the Republic of South Africa, 1996.  

Contact an attorney at SchoemanLaw for your legal needs by visiting our website at www.schoemanlaw.co.za

Yasmina Griesel
Candidate Attorney
SchoemanLaw Inc | www.schoemanlaw.co.za