Guide to Maintenance Pending Divorce and Rule 43 Applications

 

1. Introduction

 

When a marriage breaks down, and divorce proceedings are instituted, the finalisation of the divorce can take months or even years. During this period, urgent issues often arise concerning:

• Financial support

• Child maintenance

• Legal costs

• Care and contact arrangements

 

To address these urgent matters, Uniform Rule of Court 43 (High Court Rule 43) provides a streamlined procedure for obtaining interim relief while the divorce action is still pending.

 

The purpose of Rule 43 is to resolve pressing matrimonial issues efficiently, effectively, and expeditiously, with minimal delay and expense.

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2. Rule 43 Application

 

Rule 43 application is a specialised interim remedy available only in divorce proceedings before the High Court. It provides temporary relief until the divorce is finalised.

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It is important to note:

• Rule 43 applies only to interim matrimonial relief.

• It cannot be used for unrelated disputes.

• The relief granted is temporary and does not determine final rights.

 

3. Claims That May Be Brought Under Rule 43

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Rule 43 is limited to specific types of interim relief, i.e.:

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3.1 Maintenance

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• Interim maintenance for a spouse

• Interim child maintenance

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This ensures financial stability during the pendency of the divorce.

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3.2 Contribution to Legal Costs

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A financially disadvantaged spouse may request a contribution towards legal costs to ensure equal access to justice in the main divorce action. This prevents one party from being unfairly prejudiced due to financial inequality.

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3.3 Interim Care and Contact

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The Court may determine:

• Where the children will primarily reside

• The frequency and structure of contact with the other parent

• Temporary parental responsibilities during litigation

 

The child’s best interests remain paramount.

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4. Persons Who May Bring a Rule 43 Application

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An application may be brought by any spouse in a marriage recognised in South African law, including:

• Civil marriages

• Customary marriages

• Civil unions and same-sex marriages

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The applicant must show that divorce proceedings have already been instituted.

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5. The Application Process

 

Rule 43 is designed to be simple and concise. Unlike ordinary motion proceedings, it does not involve lengthy affidavits or extensive annexures, only the submission of the founding papers by the applicant, followed by the Respondent’s opportunity to file a sworn reply.

 

Step 1: The Founding Papers

 

The process begins with:

• A Form 17 notice, and

• A concise sworn affidavit

 

The affidavit must not be overly lengthy. Courts have struck off applications that contain excessive detail or annexures, regarding such conduct as an abuse of process.

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The affidavit should include:

• Identification of the parties and proof of marriage

• Confirmation that divorce proceedings are pending

• Grounds establishing the Court’s jurisdiction

• The relief sought

• Brief reasons for the marital breakdown

• An allegation that there are reasonable prospects of success in the main divorce action

 

Step 2: The Respondent’s Reply

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Once served by the Sheriff, the Respondent has ten (10) days to deliver a sworn reply.

 

Failure to respond within this period results in the Respondent being ipso facto barred from participating in that specific application.

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There is no automatic right to file further affidavits unless the Court permits it.

 

6. Variation of a Rule 43 Order

 

In terms of High Court Rule 43(6), a Rule 43 order may only be varied if there has been a material change in circumstances affecting:

• Either spouse, or

• A child

 

A variation cannot be requested simply because new evidence has surfaced. The actual circumstances must have changed.

 

7. Magistrates’ Court Equivalent

 

If divorce proceedings are instituted in the Regional Division of the Magistrates’ Court, the equivalent procedure is governed by Magistrates’ Court Rule 58 (MCR 58).

 

This procedure mirrors the High Court Rule 43 process and provides similar interim relief.

 

8. Important Considerations

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• Rule 43 relief is temporary.

• Orders remain in force until the divorce is finalised or varied.

• The procedure is designed to be swift and cost-effective.

• Full and honest financial disclosure is essential.

 

Failure to disclose material information may negatively affect credibility and the outcome of the application.

 

9. Seek Legal Assistance

 

Maintenance pending divorce and Rule 43 applications are urgent and often emotionally charged. Strategic preparation is essential to ensure that:

• Financial needs are properly motivated.

• Children’s best interests are protected.

• Legal costs are fairly addressed.

• Procedural requirements are strictly complied with.

 

Careful drafting and clear presentation significantly influence the outcome.

 

A consultation provides structured guidance, ensures compliance with procedural rules, and positions the application for the strongest possible result during the pendency of the divorce.