Published date: 2012-07-11
Author: Judy Wilkins

You are in the unfortunate position of being in the process of getting divorced. Your husband has most of the assets under his control and has been largely responsible for the living costs. How do you survive until the divorce is finalised? How do you afford an attorney? The Rule 43 application is specifically designed for this situation. The Rule 43 Application is launched once divorce proceedings have been initiated.

The Rule 43 application deals with 3 areas-:
1. Care and contact of the minor children. This means who will look after the children on a day to day basis until the divorce is finalised. In other words the question of where the minor children will reside primarily and what contact the other parent will have with the minor children.
2. Maintenance for the minor children and spouse (this is where the spouse normally the woman cannot yet support herself.)
3. A contribution to legal costs.

Care and contact
If it is disputed between the parties where the children should reside pending the Divorce, then the Court will order the family advocate to do an investigation and give a recommendation to the Court. The family advocate is assisted by a qualified social worker and interviews both parties and the children. There is no cost involved unless the family advocate appoints an independent psychologist or social worker.

The affidavits in the Rule 43 Court need to be short and to the point. You cannot go into great detail regarding the history of the matter. The Court needs to be told what each party earns, who paid which expenses during the marriage and the current costs. So although the affidavit must be short and to the point, the Court must be in a position to make a reasoned decision. In this affidavit the total living costs will be divided between the spouse and minor children. The spouse applying for the order will attach a payslip and indicate to the Court what the other spouse is earning. When it comes to adult children, namely children over 18, the child would have to apply for maintenance personally from the maintenance Court.

Legal costs
As regards legal costs there are normally two Rule 43 applications. The initial Application, where the Courts will grant an amount between R5000 to R10 000 and then just before trial another application is done requesting assistance for the legal costs of the trial which amount will be substantially more than the initial contribution. I have referred to women in this article but a man is entitled to the same relief. It is simply because the general situation in the community is that the husband is the breadwinner.

If a woman earns the same as the man, she can still utilise this procedure to ensure that he pays his share of the children’s costs. There are only two affidavits in a Rule 43 application. In other applications there are three. There is the founding affidavit where the case is set out and then the other party has the right of reply. Thereafter, the matter is set down for hearing in Court.

The Court frowns upon lengthy affidavits and in fact if the Court decides that the affidavit is too long, it may dismiss the application. Often after the Rule 43, parties settle. The application makes it more real and makes parties aware of the road ahead and the cost implications of a divorce.