Divorce Part 4: Rule 43
What happens when a divorce is taking a long time to finalize? Who pays for the children’s necessities in the meantime? How much contact with the children is allowed and how is it structured?
These are often questions – from clients who are divorcing – that attorneys face.
The law does provide a mechanism that can be used to assist parties during a divorce to provide for the interim period before the divorce is finalized. This mechanism is referred to as a Rule 43 Application.
Rule 43: What does it deal with?
Rule 43 deals with many of the issues that will ultimately be dealt with in the final divorce action. It is an interim measure to give certainty to the parties before the divorce is final. Bear in mind, some extremely acrimonious divorces can take years to finalise and parties need to be clear about their rights and obligations in the intervening period.
Rule 43 covers interim primary care of the minor children, and contact by the non-primary carer to the minor children. Furthermore it can deal with maintenance for minor children and if necessary, for a spouse. It can be used to enforce payment of for instance, the bond of the matrimonial home and vehicles, school fees and medical aid premiums.
What is the procedure?
The person (known as the Applicant) seeking the interim Order will serve and file with the Court, an affidavit (referred to as a Founding Affidavit) in which the person seeking relief will set out the facts relating to the divorce and why they are of the opinion that they are entitled to the relief sought.
The Affidavit and relevant notice will be served on the Respondent (the person against whom the relief is sought), to which the respondent may respond by affidavit. Thereafter the matter is set down for argument and an Order by the Court will be granted.
An Advocate will generally be briefed to attend to argue the Rule 43 Application
It does happen that the issues to be argued in the Rule 43 can be settled outside of the Court and it can happen that the whole divorce action is settled at the same time. It is, accordingly, very important that you make yourself available at the hearing in order that you can give your attorney instructions, should settlement negotiations transpire.
What if things change?
A Rule 43 Court Order is not cast in stone. It is contemplated that circumstances do change and as such, should a serious change in either of the spouses’ circumstances change, the party with the material change to their circumstance can approach the Court for an amended Order to reflect their changed circumstance.
You should discuss the full parameters of the Rule 43 procedure with your attorney so that you understand fully the benefits and potential pitfalls involved in Rule 43 applications.
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