Insight into seeking interim maintenance through Rule 43/58
15 Aug 2023
When couples go through contested divorce proceedings, the process can often be prolonged, leading to financial hardships for one of the parties involved. To alleviate such difficulties, the law permits spouses to seek interim relief from the Court until the finalisation of the divorce. In this article, we will explore the Rule 43 Application for maintenance in the High Court and the Rule 58 Application in the Magistrates and Regional Court. Our focus will be on understanding the process, the types of relief available, and the considerations taken into account when granting such orders.
Rule 43/58 Interim Maintenance Application
The Rule 43/58 Application enables spouses to request the Court to grant interim relief in the following forms:
- Interim custody of a child or children.
- Interim access to a child or children.
- Contribution towards the legal costs incurred in the ongoing matrimonial action.
The interim maintenance order may encompass various financial aspects, such as school fees, medical aid, and payments related to the matrimonial home bond, among others.
The Rule 43/58 Application can be made at different stages:
- Before initiating the divorce summons.
- Concurrently with the issuance of the summons.
- After receiving the Notice of Intention to Defend from the Defendant in the divorce proceedings.
The application consists of a Notice of Motion and a Founding Affidavit submitted by the party seeking the Interim Order (the Applicant). This affidavit should outline the relevant facts regarding the divorce and provide reasons justifying why the Applicant is entitled to relief from the other party (the Respondent). Full financial disclosure, including assets, income, and expenses, should be provided, specifying the funds required for legal costs or interim maintenance.
The Respondent is served with the application and is given ten days to respond with an opposing affidavit. The Respondent may also submit a counter application, seeking interim access or custody of the minor child or children.
The necessary documentation for the application includes the Notice in terms of Rule 43/58, requiring the Respondent to file an opposing affidavit within ten days, a Founding Affidavit attached to the Rule 43/58 Notice and annexures substantiating the Applicant’s financial position.
Hearing and court order
Upon receiving the Respondent’s opposing affidavit, the matter is scheduled for argument on the court roll. The application is argued based solely on the submitted documentation, without the need for oral evidence. The Judge or Magistrate will then issue an order based on the circumstances.
Contribution towards legal costs
The Court, guided by Section 9(1) of the Constitution, aims to ensure equality before the law and the right to equal protection and benefit of the law. It considers the Applicant’s ability to present their case adequately and the Respondent’s financial position when determining the appropriate contribution.
The Rule 43/58 Interim Maintenance Application serves as a crucial mechanism to provide financial assistance and stability during contested divorce proceedings. It allows spouses to address pressing issues while the divorce is pending and ensures a fair consideration of each party’s circumstances during the legal process.
For any assistance, contact an attorney at SchoemanLaw.
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