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Rule 43 - Interim custody entitlement

The High Court Rule 43 application is used mainly in the sense of securing interim maintenance and a court order compelling your spouse to pay maintenance while waiting for the divorce to go through. A divorce case can take quite a long time to finalize.

The Rule 43 is also aimed to put both parties on an equal footing so that they can both afford similar and proper legal representation to argue their case. That is why very often a party to a Rule 43 Application asks for a contribution to their legal fees in their court papers.

However, the Rule 43 application is also designed to protect a party who doesn't see his or her children as much as he or she wants. In the Rule 43 you can ask the court for an order entitling you to spend more time with your children and be awarded more contact rights to your children than you are currently being allowed.

A recent case where this has currently come up is the divorce of ex South African rugby player Joost Van Der Westhuizen and singer Amor Vittone. Van Der Westhuizen is currently seeking more contact to his children and a Rule 43 application has been brought to court for this.

According to reports, him and Vittone have no longer been living together as husband and wife for 18 months. They have two children, Jordan (7) and Kylie (5). The current position, according to the reports, is that Van Der Westhuizen has the children with him every second weekend, and also often has them with him in the afternoons when he fetches them from school and then drops them off afterwards at their residence with their mother.

Van Der Westhuizen now says that these arrangements no longer work for him, and wants more contact to the children. According to the reports, Vittone believes that the contact currently exercised by Van Der Westhuizen is sufficient.

The matter is one where the family advocate would need to investigate and to decide what is in the best interests of the children. One of the questions which would most likely be asked is why Van Der Westhuizen was up until now satisfied with his rights of contact but now wants to change it.

There have been newspaper reports indicating too that Van Der Westhuizen may be suffering from a life-threatening illness. This would also need to be looked into by the family advocate. If Van Der Westhuizen's illness affects his ability to drive or there is a risk, for example, that he may faint, this would affect his rights of contact, and a domestic worker or his mother may be required to help. He should also however be awarded as much time as possible with his children if he does suffer from a life-threatening illness.

If a parent only sees his or her children on weekends, this is unfair to both parents, because the "weekend parent" becomes the "fun parent" while the other parent becomes the "responsible parent" in the eyes of the children. The "weekend parent" should also have to share responsibilities with the other parent.

Divorces are never easy on the children and that is why the courts must always do what is in the best interests of the children. The Rule 43 application for more contact rights to the children is a good tactic to apply in a divorce as an interim measure for securing more contact to your children.

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