What is Rule 43 interim relief in a divorce?

A contested divorce in the High Court takes years. During those years somebody has to pay the school fees, somebody has to live somewhere, and the children have to know which parent they wake up with.

This guide is part of our Divorce in South Africa: the complete guide, which links every guide on the topic.

The spouse who controls the money knows all of this, and delay is therefore a strategy rather than an accident. Rule 43 exists because of that, and it is the single most important procedural tool available to the financially weaker spouse.

What it is

Rule 43 of the Uniform Rules of Court provides a summary procedure for interim relief while a matrimonial action is pending. In the magistrates' courts, Rule 58 does the same thing in substantially the same way.

Four kinds of relief can be claimed:

Maintenance pendente lite. Maintenance for a spouse, for a child, or both, pending the outcome of the divorce.

A contribution towards costs. A payment by one spouse towards the other's legal costs of the divorce itself.

Interim care of a child. Where the child lives, day to day, until the divorce is decided.

Interim contact with a child. The arrangements for the other parent.

The relief is interim in the true sense. It is not a preview of the final order, it creates no rights in the divorce, and the court granting it is not deciding the case.

How it works

The procedure is designed to be fast, which is why it is prescribed so tightly.

The applicant delivers a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds for it, together with a notice to the respondent to deliver a reply.

The respondent delivers a sworn reply in the nature of a plea.

The registrar then enrols the matter, and it is argued on those papers. There is no oral evidence, no cross-examination and no discovery.

Brevity is the point, and it is routinely ignored. Courts have complained for years about Rule 43 applications running to hundreds of pages, and judges have penalised parties in costs for it. An application of this kind should be short, and an affidavit that reads like a trial record defeats the purpose of the rule and wastes money that the applicant usually does not have.

What the court is deciding is narrow: what the reasonable needs are, and what the other party can afford. Everything else is noise.

The contribution towards costs

This head of relief is the least understood and often the most valuable, and it deserves to be claimed more often than it is.

Where one spouse controls the finances and the other has no means, the divorce is not a contest between equals. One party can instruct senior counsel and run the matter for years; the other cannot pay a consultation fee. A contribution towards costs is the mechanism that addresses that, and it rests on the principle that both parties should be able to present their cases adequately.

The court considers the scale on which the other party is litigating, the complexity of the matter, and what is reasonably needed to put the applicant in a position to participate properly. It can be substantial, and it can be revisited as the matter progresses towards trial.

If you are the spouse without resources, ask for it. Our guide on what a divorce costs gives a sense of the figures involved.

There is no appeal

This is the feature people find hardest to accept, and it is settled.

Section 16(3) of the Superior Courts Act 10 of 2013 provides that no appeal lies against an interim order made in terms of Rule 43 or its magistrates' court equivalent. In S v S and Another the Constitutional Court upheld the constitutionality of that bar, holding that it does not offend the right of access to courts or the best interests of the child.

The reasoning is practical. Rule 43 exists to give immediate relief. An appeal would take longer than the divorce, and the party with the money would use it, which would defeat the whole purpose of a quick and cheap procedure designed to protect the vulnerable spouse.

Two consequences follow, and they are the reason this matters more than a procedural footnote.

Prepare properly the first time. The papers you file are the case. There is no second bite, and a badly prepared application produces an order you will live with for years.

Variation is the remedy, not appeal. Rule 43(6) allows the court to vary its order where there is a material change in circumstances. A job loss, a serious illness, a substantial increase in income, or a child's changed needs are the kinds of things that qualify. Being dissatisfied with the original order is not.

What the court looks at

Reasonable needs. Actual monthly expenses, supported by figures rather than assertion. Housing, food, school fees, medical cover, transport, insurance. An inflated schedule is usually obvious and it damages the applicant's credibility on everything else.

Ability to pay. Income, and also the standard of living the paying spouse maintains. Courts look past a convenient drop in declared income that coincides with the summons, particularly where the person's lifestyle has not changed.

The standard of living during the marriage. Interim maintenance is not meant to reduce a family to subsistence while the case runs.

The interests of the children, which are paramount in any decision about care or contact. Our guide on how child maintenance is calculated explains the proportional approach, and the maintenance estimator gives an indicative figure.

Full disclosure. Both parties must be frank about their finances. Non-disclosure is the commonest reason a Rule 43 application goes badly for the person doing it, because a court that cannot trust the figures will make the assumptions it thinks appropriate.

Common mistakes

Treating it as the trial. The court is not deciding the divorce, the accrual, or who was at fault. Evidence about a spouse's conduct fifteen years ago has no place in it.

Understating income. Bank statements and a lifestyle are difficult to reconcile with a sudden collapse in earnings, and judges see the pattern constantly.

Overstating expenses. A schedule that includes aspirational spending rather than actual spending invites the court to discount the whole document.

Waiting. People delay for months hoping the divorce will settle, borrow from family, fall into arrears, and then bring the application from a position of crisis. Bring it early.

Leaving out the costs contribution. It is the head of relief most often forgotten, and the one that determines whether the rest of the divorce is a fair fight.

Enforcing the order

A Rule 43 order is a court order and is enforced like one.

Where maintenance is not paid, the usual routes are available: a warrant of execution, an emoluments attachment order against the defaulter's salary, or an attachment of a debt owed to them. Contempt proceedings are available where the failure is wilful and mala fide, and a maintenance defaulter can be committed to prison, although a court will not do that where the person genuinely cannot pay.

Our guide on what to do if maintenance is not paid sets out the process, and the maintenance arrears calculator works out what has accumulated.

The arrears do not disappear when the divorce is finalised, either. An amount that became due under an interim order remains owing, and it can be claimed afterwards.

When it ends

A Rule 43 order lasts until the divorce is finalised. At that point the final order takes over, and whatever the decree provides for maintenance, care and contact replaces the interim arrangement entirely.

This is worth saying because parties sometimes treat the interim order as a settlement. It is not. A generous interim order is not a promise of a generous final one, and a disappointing interim order does not predict the outcome of the trial.

Worked example

This example is illustrative. A couple separates after fourteen years. The husband earns R95 000 a month. The wife left formal employment to raise their two children and now earns R9 000 a month part-time. The children live with her. He has moved out and has stopped contributing beyond the bond.

She brings a Rule 43 application. Her schedule shows reasonable monthly expenses of R41 000 for herself and the children, against her income of R9 000. She asks for interim maintenance, for the children to remain in her primary care with defined contact to him, and for a contribution to costs of R120 000, pointing out that he has instructed a large firm and counsel while she has been quoted R2 500 an hour she cannot pay.

His reply says her expenses are inflated and that his income has recently dropped. He attaches no bank statements.

The court is unlikely to accept an unsupported drop in income, and is likely to fix interim maintenance at a figure that meets the reasonable needs of the children and provides for her, having regard to the standard of living during the marriage. It is likely to order a contribution towards costs, perhaps not the full amount claimed but enough to allow her to instruct an attorney and prepare for trial.

He cannot appeal that order. If his income genuinely falls later, he can apply to vary it under Rule 43(6) with the evidence he failed to produce the first time.