Divorce matters are often complicated and lengthy proceedings, particularly in cases where one spouse is dependent on the other spouse for financial support.  Rule 43 procedures are intended to be an efficient, speedy and inexpensive way for the interim maintenance needs of a dependent spouse and minor children (where necessary) to be determined and met, pending the finalisation of the Divorce. 

Furthermore, it should be noted that a Rule 43 Application can be used in instances where parties to a divorce action need to determine care and contact of the minor children, secure maintenance for themselves and/or the minor children, or where a party requires a contribution towards her/his legal cost from the other party.

The Johannesburg High Court recently handed down a judgement wherein it had to be determined whether the Applicant was entitled to such interim maintenance.[1]

The Applicant and Respondent had been married in community of property for twenty years prior to their separation. During this time Applicant put forward evidence that she had never known nor had any control over the finances in their communal estate. She further claimed that during the subsistence of the marriage the parties had enjoyed a comfortable lifestyle and she was reliant on him for support.  

It was the Applicant’s argument that the Respondent was able to afford the maintenance claimed and that she required such maintenance, pendente lite (during/pending litigation). Two key factors were considered by Mahomed AJ in this case, namely the Applicant’s earning capacity and the Respondent’s ability to afford maintenance.

In terms of the Applicant’s earning capacity, it was found that the Applicant deserves to live with respect and dignity.  The Applicant wished to re-establish a business in the beauty industry but lacked the capital to do so. In terms of the Respondent’s ability to afford the maintenance claimed, the Court found that the Respondent had failed to

adequately persuade the Court that he is not in a position to afford the interim maintenance claimed.

In casu, Mahomed AJ ordered that the Respondent pay to the Applicant R29 000,00 per month for maintenance, Respondent shall retain the Applicant on his medical aid (with the same benefits) pendente lite, and a R35 000,00 contribution towards her legal costs.

Therefore, it is evident that Rule 43 Applications, particularly where it relates to the interim maintenance of a spouse or minor children, plays an exceptionally important role in ensuring that a spouse who has had little to no financial means during the subsistence of the marriage receives the necessary financial support pending the divorce proceedings.

The importance of this Rule in assisting dependant spouses and minor children cannot be overstated, but the amount awarded in terms of this Rule will vary depending on the needs of the applicant, the lifestyle which the parties enjoyed during the marriage as well as the income and means of the spouse who is ordered to pay the maintenance.

Should you require assistance with a divorce, kindly contact our Family Law department.

By Mariska Cloete

[1] TB v DB Case Number 55426/2021.