Divorce and Family Law

 

 

While it is possible to represent yourself, navigating the legal procedures and preparing the necessary documentation for a Rule 43/58 application can be complex. Engaging an experienced family law attorney, like the team at Aucamp Inc., can significantly increase your chances of a successful application and ensure your rights are protected throughout the process. We can provide expert guidance and support to help you secure the financial assistance you need during this challenging time.

The court will assess your financial needs and your spouse's ability to pay. You will need to provide detailed information about your income, expenses, and assets in your application. The court aims to ensure that you and your children can maintain a reasonable standard of living during the divorce process, without causing undue financial hardship to the other spouse. 

Compared to the full divorce proceedings, the process for obtaining an interim maintenance order through a Rule 43/58 application is generally quicker. While timelines can vary depending on the court's workload and whether the application is opposed, a decision can often be reached within a few weeks to a couple of months from the date of application.   

Yes, you can apply for a contribution towards your legal costs as part of a Rule 43/58 application. The court recognises the importance of both parties having equal access to legal representation and may order your spouse to contribute towards your legal fees to ensure you can present your case effectively.   

Interim maintenance, also known as "maintenance pendente lite," is a temporary financial support order granted by the court during divorce proceedings. It helps a financially dependent spouse and/or children cover their essential living expenses until the divorce is finalised and a final maintenance order is issued. Think of it as a financial bridge during a period of uncertainty.   

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Interim Maintenance and Divorce

Navigating Financial Uncertainty During Divorce - Interim Maintenance (Rule 43/58 Applications)

Facing a divorce can be an incredibly stressful time, and the worry about your financial future and that of your children is often overwhelming. You might be concerned about how you'll manage day-to-day expenses and afford legal representation while waiting for the divorce to be finalised, which can sometimes take years. You may wonder, How will I support myself and my children in the interim, How can I afford to pay my lawyer to handle my case, Must I wait until the very end of the divorce to receive any financial assistance?

Fortunately, South African law offers a solution to these pressing concerns through a process known as applying for interim relief. This provides a relatively quick and straightforward way to seek immediate assistance from the court while your divorce proceedings are underway.

What is Interim Relief (Rule 43/58)?

Interim relief, often referred to as a Rule 43 application in the High Court or a Rule 58 application in the Regional Court (Magistrates Court), allows you to ask the court for specific orders to provide temporary support until your divorce is finalised. The technical term for the maintenance granted during this period is "maintenance pendente lite," meaning "maintenance pending the litigation."

What Kind of Interim Relief Can I Apply For?

Through a Rule 43/58 application, you can request the court to order your spouse to provide:

  • Maintenance This can include financial support for yourself and/or your children to cover essential living expenses.
  • Contribution Towards Legal Costs This helps you afford legal representation to ensure you can properly present your case.
  • Interim Care and Contact with Children If there are disagreements about the care arrangements for your children, the court can make temporary orders regarding custody and visitation.

How Does the Court Decide on Interim Relief?

At this stage of the legal process, the court's primary focus isn't on determining who is at fault for the breakdown of the marriage or delving into the intricate details of your financial situation. Instead, the court will primarily consider:

  • Your needs How much financial support do you require to meet your and your children's essential living expenses?
  • Your spouse's ability to pay What is your spouse's financial capacity to provide the requested support?
  • Detailed financial investigations and blame-finding will occur later during the main divorce proceedings.

The Process of Applying for Interim Maintenance (Rule 43/58)

A Rule 43/58 application is designed to be a faster and less costly process compared to the full divorce trial. Here's a breakdown of how it generally works:

When Can You Apply?

You can typically bring this application:

  • Before the divorce summons is officially issued.
  • At the same time as you issue the divorce summons.
  • After your spouse has indicated their intention to defend the divorce.

Required Documentation

To start the process, you (the Applicant) will need to prepare and file the following with the court:

  • Notice of Motion: This formal document notifies your spouse (the Respondent) that you are applying for interim relief and requires them to respond within 10 days.
  • Founding Affidavit: This is a sworn statement where you explain the background of your divorce, why you need interim relief, and provide details about your financial situation and the amount of support you are requesting.
  • Supporting Documents (Annexures): You will need to attach documents that prove your financial position, such as bank statements, payslips, expense lists, and any other relevant financial information.

Serving the Application 
Once the application is prepared, it will be served on your spouse.

The Respondent's Response 
Your spouse will have 10 days to file an opposing affidavit if they disagree with your application. They may also bring a counter-application, for example, requesting interim access to the children.

Court Hearing 
After your spouse has responded, the matter will be scheduled for a court hearing. Importantly, the court will make its decision based only on the written documents (affidavits and annexures) submitted by both parties. No oral evidence will be presented at this stage.

The Court Order 
The Judge or Magistrate will review the information and issue an interim order, outlining the specific relief granted. This order is temporary and remains in effect until the divorce is finalised or the parties reach a settlement. It's important to note that this interim order cannot be appealed.

Unopposed Applications

If your spouse does not oppose your application, the matter will still be placed on the court roll, and an attorney will typically appear on your behalf to present the application.

Existing Maintenance Orders

If there is already a maintenance order in place from the Maintenance Court, you generally cannot use a Rule 43/58 application to change that existing order.

Focus on Necessary Expenses
The court will primarily grant interim maintenance for essential living expenses and not for luxuries. They will consider the financial circumstances of both parties to determine a fair and suitable order.

Contribution Towards Your Legal Costs
Recognising that one spouse may not have the financial means to pursue or defend a divorce, Rule 43/58 allows you to request a contribution towards your legal costs. This aims to ensure that both parties have an equal opportunity to present their case effectively.

Key Principles the Court Will Consider

  • Ensuring Adequate Representation The court wants to ensure you are in a position to present your case sufficiently, on a similar footing to your spouse.
  • Reasonable Needs vs. Wants While your spouse's wealth might be a factor, you are only entitled to a contribution towards what you need for proper legal representation, not unlimited spending.
  • Partial Contribution The court will typically order a contribution towards your costs, not necessarily cover all of them. However, you can potentially apply for further contributions as the divorce progresses.
  • Scale of Litigation The court will consider the complexity of the case and the level at which your spouse is litigating when determining a fair contribution.

In Conclusion

Rule 43/58 applications provide vital interim relief for individuals going through divorce, offering a pathway to financial stability and ensuring access to legal representation during a challenging period. This process is designed to be quicker and more affordable than waiting for the finalisation of the divorce.

If you are facing a divorce and are concerned about your financial situation, we at Aucamp Inc. are here to help. Our experienced family law attorneys can guide you through the process of applying for interim maintenance and ensure your rights and interests are protected. Contact us today for a consultation.