PROTECTING FINANCIALLY WEAK SPOUSES DURING DIVORCE MATTERS: MAINTENANCE PENDENTE LITE
Divorce is a challenging process, often fraught with emotional and financial turmoil. In South Africa, the legal system acknowledges these difficulties and provides mechanisms to ensure that the financially weaker spouse is protected while divorce proceedings are ongoing. Two key rules, Rule 43 of the High Court and Rule 58 of the Magistrates’ Court, offer interim relief to spouses who may otherwise be vulnerable to financial hardship.
Rule 43: Temporary Relief in the High Court- What is Rule 43?
Rule 43 of the High Court is designed to provide immediate, albeit temporary, relief to a spouse who is financially disadvantaged during divorce proceedings. This rule addresses the imbalance that can occur when one spouse, who controls the majority of the financial resources, stops contributing to maintenance or joint estate obligations.
What Can Be Claimed Under Rule 43?
1. Maintenance for the Spouse: The applicant can request maintenance payments to cover their living expenses.
2. Maintenance for Children or Spouse: Claims can be made for the maintenance and care of minor children, ensuring their needs are met.
3. Contribution to Legal Costs: The financially weaker spouse can seek a contribution towards legal fees, enabling them to effectively participate in the divorce proceedings.
4. Interim Care, Contact and/or Access: Temporary custody arrangements and visitation rights can be established to protect the interests of the children involved.
The Process:
To initiate a Rule 43 application, the applicant must file an application, detailing their financial situation and the relief sought in the founding affidavit. The respondent then has an opportunity to counter with their affidavit. The court typically hears these applications quickly, often without the need for extensive oral evidence, to ensure swift relief.
Rule 58: Interim Relief in the Magistrates’ Court- What is Rule 58?
Similar to Rule 43, Rule 58 of the Magistrates’ Court serves the same purpose but operates within the Magistrates’ Court’s jurisdiction. It provides a means for spouses engaged in divorce proceedings to obtain temporary relief, ensuring financial stability and fairness.
What Can Be Claimed Under Rule 58? The claims under Rule 58 mirror those under Rule 43:
1. Spousal Maintenance: Ensuring that the financially weaker spouse receives support for their living expenses.
2. Child Maintenance: Providing for the needs of minor children.
3. Contribution to Legal Costs: Assisting the applicant in managing the expenses associated with the divorce.
4. Interim Care, Contact and/or Access: Establishing temporary arrangements for the care and access to children.
The Process:
The procedure for Rule 58 is straightforward. The applicant submits an affidavit outlining their financial needs and the requested relief. The respondent can reply with their own affidavit. The Magistrates’ Court prioritizes these applications, recognizing the urgency of providing interim relief.
Protecting Your Rights- Call us today!
Divorce can be weaponised by a financially stronger spouse to create undue pressure and hardship. Rule 43 and Rule 58 act as safeguards, ensuring that both parties can maintain a reasonable standard of living and have fair access to legal representation during this turbulent time. At MJM Attorneys Inc, we are committed to protecting the rights and well-being of our clients. If you find yourself in a situation where financial power imbalances are being exploited, our experienced legal team can assist you in navigating these rules to secure the interim relief you deserve.
Understanding and utilizing these legal mechanisms can make a significant difference, providing stability and fairness as you move towards the resolution of your divorce. Contact us today to learn more about how we can support you through every step of the process.
Contact us today on 015 023 0013/079 809 1300 or email info@mjmattorneys.co.za