Rule 43: Paying Interim Maintenance During a Divorce

When a marriage disintegrates, the spouse who has been the homemaker and caregiver often finds themself without a source of income. Statistically speaking this is usually the wife and they then have to try and provide for their own financial needs, as well as those of any children from the marriage.

The Supreme Court Act 59 of 1959 contains certain rules governing this issue. One of these is Rule 43, which applies when a couple are divorcing and a spouse requires interim maintenance. This may be for herself or himself and/or any children born during the marriage. This maintenance covers the time period during the divorce process and can cover the costs of finalising the divorce. It can also include any costs associated with paying for an interim primary residence and having contact with the children.

Once the divorce action has been instituted and a case number is obtained, the spouse in question is then able to institute the Rule 43 application. The order granted by the court covers the issue of interim maintenance while the divorce proceedings are being finalised, any maintenance after the divorce is still open to the court to decide.

The process is relatively simple, compared to the usual applications found in court proceedings. Instead of the required three affidavits, only two are needed, one from the Applicant and from the Respondent. These affidavits back up the notice of motion, which must be be filed within 10 court days of the initial divorce application.

The affidavits need to be short, otherwise they run the risk of not being considered by the court at all. The court will consider the matter by looking only at the affidavits – no oral evidence will be given. The order made will look at the standard of living of both parties before the divorce and interim maintenance will be awarded in accordance with these standards. However, no luxuries will be provided for, even if the earning spouse is very wealthy.

Essentially, the Rule 43 applicant (usually the wife) will set out in her affidavit what she needs on a monthly basis to provide for herself and any children from the marriage. The calculation will be based on what she has been spending to maintain herself and the children historically, but won’t include any luxury items.

The affidavit filed by the respondent (usually the husband) will contain details as to whether or not the maintenance being claimed by his former wife is overstated, plus whether he can afford to pay it.

Once the affidavits have been filed in court, the matter will be set down for hearing before a judge. Once an order has been granted it will usually remain in place until the divorce action has been finalised.

In the case of De Witt v De Witt 1995 (3) SA 700 (T), it was held that the applications for interim maintenance can be brought in the Maintenance Courts. Originally, the High Courts were the only courts which could consider an application of this type, however the magistrate’s courts (or lower courts) have now been given jurisdiction to deal with family law related matters, including divorces, rule 43 applications, residency applications in relation to children and the like. These lower courts can in addition also vary an order for maintenance granted in terms of Rule 43 in the High Court – although only if circumstances of the party paying the interim maintenance have changed.

By Gillian Lowndes, attorney specialising in family law

For more information, email Gillian or call 011 292 5777.