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Article by listed attorney: Fawzia Khan

One of the harsh realities of a contested divorce is that it could take a long time, often a few years, before the Registrar of the court allocates a trial date and the matter is heard before a judge. A Rule 43 application is a mechanism whereby our courts can make an interim order to a couple who are intent on divorcing but whose divorce is not yet finalized.

Rule 43 applications offers interim relief by ordering the divorcing parties to deal with each other in a specific manner until the divorce is made final. It’s used mostly by a parent who wants the court to order, pending finalization of the actual divorce process, that the other spouse to pay maintenance, and/or that perhaps primary residency of the minor children be given to him or her, and/or ask that the court define the times when the other spouse will have contact to the children, as well as get the court to order the other spouse to make a contribution towards the legal costs of the divorce. This claim is referred to as ‘maintenance pendente lite’, meaning awaiting litigation. A rule 43 application is thus an effective way to assist a spouse in need of some financial contribution towards his or her legal costs. It also serves as a medium around which all parties affected by the divorce are made aware of how and when they can interact with each other.

One of the benefits of a Rule 43 order is that it defines the boundaries of interaction by all parties affected by the divorce, including the children. In this way it offers some much needed routine and certainty in the lives of the children, who understandably feel very unsettled by all the changing events and unpredictability they face during the divorce. In addition it allows for peace of mind that key living expenses for example groceries, medical costs, school fees etc. will be met.  Once the court makes an order under the provisions of a Rule 43 application, the decision of the court cannot be appealed against. This is because a Rule 43 provides only interim relief, until the divorce itself is finalized. No appeal is allowed for any interlocutory or interim court orders. The only way a party can apply to court to change any part of a Rule 43 order, after the court issued its ruling, is to prove a material change in circumstances of either of the parties themselves or a child. This can be found in Rule 43(6). The court is very mindful not to allow an abuse of Rule 43(6).

In February 2016, in the case of Y v Y, the husband was ordered by the court on 4 December 2015 to make inter alia, certain maintenance payment to the children. Barely six days later, on 10 December 2015 he brought his own Rule 43 application, in which he claimed maintenance from his wife and asked that she contribute towards his legal costs. The court was unimpressed by his stance and said that it will not allow a rehearing of the application based on new evidence. The main point of the husband’s case hinged on what his income was. The court found that at the previous hearing, the husband choose not to take the court into his confidence regarding his income. When his wife made allegation on what he earned, the man did not confirm his claim on affidavit, nor did he choose to give evidence around it. For that reason, he could not, in his present application now ask the court to consider that his income be regarded as new evidence.

In dismissing the husband’s application, with costs, the presiding judge cautioned the man against behaving in a manner that “smacks of spite, the reaction of a stung ego rather than any genuine need for financial support” and urged the couple to deal with their differences in a less hostile manner. The court said “The parties still have a long way to walk together as co-parents of three children. He would be well advised to put this acrimony behind him during what is undoubtedly a difficult and painful time and to attempt to resolve the differences in a more constructive way”.

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