PENDING DIVORCE: FINANCIAL ASSISTANCE IN THE INTERIM

For a spouse who was not and is not currently earning an income and has been depended on their spouse for support, a pending divorce can be quite financially worrying. This becomes especially problematic when it may take years to finalize a divorce.

So what is a spouse to do when their financial support suddenly falls away?

The solution to this problem comes in the form of a Rule 43 of the High Court and a Rule 58 in terms of the Magistrate’s Court. These rules allows for a spouse to claim certain relief from their pending ex-spouses and assist in the interim until a divorce order can be made setting out more permanent arrangements. The whole process is designed to be quick and affordable for the spouse seeking assistance.

What relief can be claimed in terms of Rule 43 and Rule 58?

Rule 43 and 58 allows for the following forms of relief to be claimed:

  • Maintenance for the spouse pending the finalization of the divorce proceedings
  • A contribution towards the legal costs of a spouse’s pending divorce action
  • Interim care and contact of any child
  • Maintenance for any child

Who may claim in terms of these rules?

A spouse may apply in terms of these rules if they have been financially dependent on their ex-spouse for a period directly leading up to the divorce proceedings. The application may come from either party who has instituted the divorce proceedings or had the proceedings instituted against them. Interim relief is calculated based on the current living standards of the parties and is set to maintain this standard as far as possible. A party seeking a contribution to their legal costs for the pending divorce action may bring such an application before, simultaneously or after the issue of the divorce proceedings especially after the summons has been issued and a notice of intention to defend has been received as this automatically increases the costs associated with divorce. The reasoning behind an order for contribution is to allow the spouse their constitutional right to an equal opportunity to defend themselves in court.

How do I claim in terms of the Rule?

The application must be brought at court on the prescribed form requesting the desired assistance. The form is accompanied by an affidavit made by the Applicant setting out the reasons why such an order is needed and should be granted. Attached to the affidavit must be the applicant’s proof of income and expenses. This takes the form of bank statements showing the contributions made by the ex-spouse and bills setting out the amounts that need to be paid. Relief can only be granted for those amounts proven to exist and being necessary at the time of application. These documents are served on the ex-spouse, referred to as the Respondent, who is then granted 10 days to reply to the application with his or her own opposing affidavit setting out why the order should not be granted and providing proof thereof. The matter is then heard before a Judge or Magistrate who will determine whether such an order should be granted based on the facts contained in the documents.

Although the process is designed to be quick and affordable for the applicant it is not recommended that a spouse attempt these applications on their own. It is well worth seeking the advice of an attorney who knows the process and is aware of the requirements to have the application granted successfully. An application brought unsuccessfully may have tremendous consequences for the spouse desperately in need of such an order, leaving them potential financially unsupported until the finalization of the divorce proceedings.

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