Relief In The Meantime - Rule 43 Application Explained | Legal Articles

 

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Relief In The Meantime - Rule 43 Application Explained

Divorces often take a long time to be finalised, especially when contested. This usually translates to a huge financial burden on the shoulders of the spouse with the lesser means not only with regard to legal costs, but for their own subsistence as well. Rule 43 of the Uniform Rules (High Court) provides for interim relief pertaining to the challenges mentioned above, and others as provided in the rule. In this article we will take a look at the principles applicable to this legislative mechanism.

The proverbial ‘Stalingrad tactics’ strategy often works against the spouse/party that has less resources (including financial) at their disposal. For those unfamiliar with this strategy, it refers to a situation where those arraigned in criminal proceedings or sued under civil procedures, employ all forms of ways to delay the finalization of the matter in order to, amongst other things, frustrate the plaintiff or complainant in the hope that they will withdraw the matter. Usually, this is done when one has little prospects of success in the matter.

Before a divorce is finalised, there is an exchange of several pleadings between the parties. Where parties reach a settlement in a divorce matter, the costs are usually less than in a contested divorce, and more often finalised quicker than a contested one.

However, while the above processes are still pending and in motion, a party to the action may require interim relief where it might not be ideal to wait until the finalization of the matter. To put this into context, the Court may grant relief on maintenance, custody of the minor children, access rights as well as to give a costs order. An order for maintenance e.g spousal maintenance, usually takes effect upon the official dissolution of the marriage i.e. when the decree of divorce is granted. However, as spouses have reciprocal duties of support, the other spouse may require maintenance whilst the divorce is still in its process to be finalised.

Rule 43 of the Uniform Rules (High Court) provides for interim relief in the instance as mentioned above. An order under Rule 43 may be sought to seek relief in the following instances:

 

  1. Maintenance pendente lite;
  2. A contribution towards the costs of a pending matrimonial action;
  3. Interim custody of any child;
  4. Interim access to any child.

 

Maintenance pendente lite refers to interim maintenance whilst the divorce is still pending before the relevant Court. Such maintenance can either be for the minor children or either of the spouses. The party requesting such maintenance ought to deliver a notice with a sworn statement motivating the grounds upon which the relief is sought, and to show cause why the party requesting the relief will be prejudiced in the event that the relief is not granted.

As a matter of reference, Rule 58 of the Rules Governing Proceedings in the Magistrate’s Court provides for the same relief in the Regional Courts (as they also have jurisdiction to hear divorces).

 

Van Deventer and Van Deventer Incorporated assists with family law matters such as maintenance, divorces, protection orders, Rule 43 applications, Rule 58 applications and others. We also assist in general litigation, civil matters, criminal, labour, personal injury, company law, deceased estates amidst an array of others.

Contact us for comprehensive assistance.

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