COVID-19 and its potential effect on divorce proceedings and maintenance

COVID-19 and its potential effect on divorce proceedings and maintenance
27 May 2020

Introduction

Amongst everything else, Covid-19 appears to have a negative impact on marital relationships as well, in the spate of what has been the trend everywhere in the world. Experts attribute this to lockdown and quarantine confinement and the psychological effects thereof. What is more, the heightened risk of divorce may give rise to more situations where one spouse to a marriage cannot afford divorce proceedings but has been dragged into litigation by receiving a summons.

Maintenance pendente lite

The concept of matrimonial guilt (i.e. the person who caused the breakdown of the marital relationship) being the determining factor, in terms of the common law, which enables a spouse to claim for a contribution towards legal costs in respect of a divorce has long been abolished by our courts. The Divorce Act 70 of 1979 as amended does not require matrimonial guilt as a determining factor for eligibility for interim maintenance.

Given the fragility of many marital relationships when considering the ratio of income along with the economic impact of Covid-19, it is often the case that one spouse is unable to afford divorce proceedings, and given the fact that litigation costs are part of the duty to support where there is a need, Rule 43 can (now more than ever before) be a useful process to assist the vulnerable spouse in securing a fair outcome of the divorce proceedings.

The Rule 43 (Rule 43 in the High Court and Rule 58 in the lower Courts) is a court procedure through which a spouse in need of financial assistance during divorce proceedings can claim support or other forms of relief until finalization of the divorce. An applicant can claim for a contribution towards legal costs if he/she is unable to litigate in respect of a prima facie right or bona fide (“good faith”) defence in regards to parental rights and responsibilities, maintenance or marital property rights.

In terms of the Directive issued by the Honourable Judge President of the Western Cape Division of the High court of South Africa, with effect from 11 May 2020, in respect of Rule 43 applications, all matters set down or that have been allocated dates in the second term shall be dealt with in the manner directed by the court. From the directives, it is clear that where the matter can be decided on the papers it shall be dealt with as such, alternatively, other forms of virtual hearings may be considered, such as Microsoft Teams as a result of Lockdown. New matters will be dealt with depending on their degree of urgency taking into account the regulations passed under the Disaster Management Act 57 of 2002.

Conclusion

Where a spouse is a party to divorce proceedings, it is of utmost importance that such spouse secure legal representation to ensure that his/her rights are looked after. Should such spouse not have the means to secure legal representation and the other does, such spouse should consult an attorney for assistance to claim interim relief, and it goes without saying that during the subsistence of a marriage, there is a reciprocal duty on the parties to maintain each other and it is in this that the right for interim relief will manifest itself.

Contact an Attorney at SchoemanLaw for assistance.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
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