The law provides a mechanism to assist spouses during a divorce by providing for orders for interim maintenance and contact of minor children pending the finalisation of the divorce.
Rule 43 of the Supreme Court Act 59 of 1959 and Rule 58 of the Magistrate’s Courts Act 32 of 1944 provide that an interim order can be made to help an applicant spouse expeditiously obtain maintenance and or contact with the minor child/ren. The maintenance will be for an interim period only until the final divorce order is granted.
An application in terms of Rule 43 or 58 can be used for one or more of the following: to determine the primary residence of a minor child; interim care or contact with a minor child; maintenance for a spouse and/or child to enforce payments, such as school fees, medical aid premiums, bond payments on the matrimonial home; or an interim contribution towards the legal costs of the divorce.
Depending on the circumstances, an application can be instituted before summons is issued; simultaneously with the issuing of the summons; or after a notice of intention to defend is received.
Our Courts ensure that the application is heard expeditiously to avoid undue prejudice to the spouse seeking relief.
An applicant is entitled to interim relief depending on the living standards of the parties, and he/she must show that he/she has insufficient means in regard to maintenance or costs of the action and that the respondent can afford to pay.
With regard to a contribution towards the applicant’s legal costs, the test to be applied is that the applicant should be placed in a position adequately to present his/her case. The applicant is not entitled to all his/her costs but merely a ‘contribution” towards same.
Rule 43 or 58 requires that the applicant provide a brief statement on oath to explain why he/she is asking for the interim relief and a schedule of the parties living expenses. The respondent is afforded the opportunity of a brief reply and can challenge the applicant’s case including the amounts claimed.
The Court must then arrive expeditiously at a decision that is fair and reasonable given the circumstances of the parties. No oral evidence is given by either spouse as the application is argued only on the application papers before the Court. The decision of the presiding Judge or Magistrate is final and cannot be appealed.
This article has been written by Shaista Singh, a Junior Associate in the Litigation Department of Garlicke & Bousfield Inc. For more information contact Melissa du Preez . Contact details below.
NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of litigation.
