Not every marriage lasts until ‘death do us part’. Recent statistics show a large increase in the number of divorces instituted after the 2021 festive season. A sad reality in our country which is highlighted by various online news outlets, the traditional ‘divorce peak season’, as it is commonly known. These statistics have however, dramatically increased following the stringent Covid19 lockdown periods. The Department of Justice has noted, the Courts are dealing with a serious backlog and are inundated with civil cases, many of which are divorces.
In addition to the increased number of divorces, there has also been a notable surge in the number of applications for Domestic Violence protection orders due to the increase in domestic abuse during the lockdown periods.
The process of divorce inevitably results in much financial uncertainty and anxiety for many. It is this fear and anxiety around finances, the division of a joint household as well as the stress of how to afford and manage arrangements regarding children that impedes many from instituting a divorce action. This often leaves numerous vulnerable individuals refraining from initiating the divorce process, and staying in abusive or otherwise unhappy marriages.
This is where the protection afforded by what has colloquially become known as a Rule 43 steps in. Unbeknown to many the High Court Rule 43 (Or Rule 58 in the Magistrate’s Court) makes provision for interim relief during divorce proceedings to assist parties to a divorce with arrangements surrounding maintenance and children.
The Rule 43 application can be instituted at any stage of the divorce proceedings, including simultaneously with the divorce summons and by either spouse to the divorce action. The Rule 43 application affords interim relief during the subsistence of the divorce proceedings in respect of any or all of the following:
- Interim maintenance for the children and or the spouse;
- Interim contact and care arrangements for minor children; and
- Assistance in respect of the legal fees of a spouse.
A Rule 43 application is designed to be instituted quickly and be adjudicated upon in a robust fashion. The application involves both parties delivering one affidavit and relevant annexures to put their version of events or facts before the Court. There is no evidence led from the parties themselves on the day and unless there are exceptional circumstances, both sides only are permitted to file one Affidavit each.
The Rule provides that someone opposing a Rule 43 application has 10 business days to deliver their affidavit in opposition. Once either the 10 days have elapsed or the opposing affidavit has been delivered, a court date will be applied for. In the Durban High Court, dates are usually allocated (Depending on the time of year) about six weeks from date of application.
The Court, on the hearing day will grant an interim order which can be reviewed later if circumstances change before the divorce is finalised, but cannot be appealed. The order lasts until it is revisited by the Court later or until the divorce is granted, which can take many months and sometimes years to finalise.
In some instances a final divorce settlement can even be reached and granted at the hearing of the Rule 43 curtailing lengthy and expensive divorce proceedings.
The Rule 43 procedure offers a vulnerable spouse a solution to dealing with the financial concerns and offers a spouse being restricted from exercising contact with their children a platform from which to enforce their rights in a defined Order.
The Rule 43 procedure can help ease the fear and anxiety which many people have, during the divorce process and is best tackled early in the divorce.
JANUARY 2022