Divorce proceedings, particularly when contested, can take months or even years to finalise. During this period, one spouse—often the financially dependent party—may be left without adequate financial support. Minor children may also be affected if interim parenting and financial arrangements are not in place.
South African law addresses this risk through Rule 43 of the Uniform Rules of Court in the High Court and Rule 58 of the Magistrates’ Courts Rules in the Regional Court. These rules allow parties to approach the court for urgent interim relief while the divorce action is ongoing.
What is a Rule 43 Application?
A Rule 43 application is a summary procedure that enables a party to seek temporary court orders regulating financial and parenting matters pending the finalisation of a divorce. Its purpose is to prevent hardship, ensure fairness between spouses, and protect the interests of minor children during the litigation process.
Through a Rule 43 application, a court may order interim maintenance for a spouse and/or minor children, a contribution towards legal costs, and temporary arrangements regarding the care of and contact with minor children. Although the term “custody” is still commonly used, South African law now refers to “care” and “contact” in terms of the Children’s Act 38 of 2005.
Maintenance may include reasonable contributions towards housing, school fees, medical aid, and living expenses. However, the courts generally distinguish between reasonable needs and luxury expenditure, and will typically only order what is necessary and fair in the circumstances.
The Rule 43 Application Process
Rule 43 proceedings are designed to be swift and cost-effective. Unlike ordinary motion or trial proceedings, the process is limited to affidavits and oral argument, without extensive pleadings or discovery.
The party seeking interim relief files a founding affidavit setting out their financial position, needs, and the relief sought. The other party then files an answering affidavit. Once these affidavits are filed, the matter is set down for argument and the court issues an interim order.
A Rule 43 application may be brought before a divorce summons is issued or at the same time as the divorce action is instituted.
How Does the Court Decide What to Order?
The court has a wide discretion when granting interim relief. It will consider the financial circumstances of both parties, the standard of living during the marriage, the needs of the minor children, and the paying party’s ability to meet the requested obligations.
The guiding principle is fairness, with particular emphasis on the best interests of the child in matters involving minor children.
Rule 58 Applications in the Regional Court
For divorces heard in the Regional Court, Rule 58 provides a similar mechanism for interim relief. The types of orders available under Rule 58 mirror those under Rule 43, including maintenance, interim parenting arrangements, and contributions towards legal costs.
Regional Court proceedings can be more cost-effective and accessible, depending on the complexity and value of the dispute.
What If Circumstances Change?
Rule 43 and Rule 58 orders are temporary. If there is a material change in circumstances—such as a change in income, relocation, or changes affecting the children—either party may apply to court to vary the interim order.
Once the divorce is finalised, the interim orders fall away and are replaced by the terms of the final divorce order.
Frequently Asked Questions
How quickly can a Rule 43 order be obtained?
Rule 43 applications are intended to be expedited. Depending on court availability, an order can often be obtained within a few weeks.
Can I apply for Rule 43 before filing for divorce?
Yes. A Rule 43 application can be brought before or at the same time as divorce proceedings are instituted.
Can I receive maintenance for myself and my children?
Yes. The court may order maintenance for minor children and for a spouse who requires financial support, depending on the circumstances.
Will the court maintain my lifestyle during the divorce?
Generally, no. Courts focus on reasonable and necessary expenses rather than luxury spending.
Can I obtain a contribution towards my legal fees?
Yes. A party who cannot afford legal representation may request a contribution towards legal costs to ensure fairness in the litigation process.
Can interim orders be changed?
Yes. If circumstances change materially, either party can apply to vary the interim order.
What happens to a Rule 43 order once the divorce is finalised?
Rule 43 orders automatically fall away once the final divorce order is granted, and permanent arrangements are determined in the divorce decree.
Conclusion
Rule 43 and Rule 58 applications play a critical role in ensuring financial stability and appropriate parenting arrangements while divorce proceedings are ongoing. They are designed to provide swift, practical relief and to prevent one party or minor children from being unfairly disadvantaged during what is often a prolonged and contested process.
Given the court’s wide discretion and the importance of presenting accurate financial and factual information, it is essential to obtain experienced legal advice when preparing or defending a Rule 43 or Rule 58 application.
Speak to a Divorce and Litigation Specialist
At O’Reilly Law, we provide strategic, commercially minded legal advice in complex family law and divorce disputes. We assist clients with Rule 43 and Rule 58 applications, interim maintenance claims, parenting arrangements, and contributions towards legal costs, with a focus on protecting your interests and achieving practical outcomes.
If you require urgent interim relief or advice on your rights and obligations during divorce proceedings, contact us for a confidential consultation.