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Rule 43 & Out of court settlements


High Court Rule 43 applications and subsequent High Court directives to settle the entire matter outside of Court – MCE v JE (13495/2011) [2011] ZAGPPHC 193 (14 September 2011). 

The Rule 43 application in the High Court, which is an interim application for maintenance and a contribution towards legal fees, very often forces the parties to settle the whole divorce matter out of court, due to the high legal fees related to this application, and the further legal fees which may be incurred after the Rule 43 application.

Recent case law which illustrates this is that of MCE v JE (13495/2011) [2011] ZAGPPHC 193 (14 September 2011). In this matter both the applicant and respondent were salaried employees. The applicant earned R8 712.75 per month, and the respondent R22 634 per month. The applicant claimed that her monthly expenses were approximately R18 972 The applicant had left the matrimonial home and was now claiming R10 000 maintenance for herself, that the respondent re-register her on his medical aid as a dependent, and a R10 000 contribution towards her legal fees.

What is quite interesting about this Rule 43 application, as well as plenty of other Rule 43 applications, is the way the Courts encourage the parties to settle the whole divorce matter out of court, after the Court has become aware of the poor financial position of the parties. The applicant, on the facts of the application, had already been in a situation where she had been forced to apply for debt review, after owing R87 750 on credit cards and clothing accounts. Her net salary was only R8 712.75. Over half of her income (R4 800) was spent on servicing these debts.

For various reasons the Court did not allow the applicant interim maintenance or a contribution towards her legal fees. What is quite interesting about this Rule 43 application, is that the Court was of the view that the issue of the applicant’s debts could not be dealt with in the Rule 43 application, but the Court urged the parties rather to try and settle the whole divorce matter, so that the joint estate could be divided and the issue relating to the debts resolved.

Even though the applicant in this case had argued that some of the debts had been incurred jointly with the respondent, the Court found that this was irrelevant for purposes of the Rule 43 application, and that the debt issue should be dealt with in the main divorce action rather. The Court was of the view that the estate of the parties was too small and was too heavily indebted to incur any further unnecessary costs on litigation.

It is very expensive to litigate in the High Court these days. A divorce can cost anything depending on the hourly rate of the attorney. Unfortunately Rule 43 applications are often necessary, particularly at the start of divorce proceedings, to compel somebody who has stopped paying maintenance or who is paying less maintenance than he or she should, to start paying an increased amount.

Once the parties see how expensive this application is and what further legal costs may be incurred, they often agree to settle the whole divorce matter. This however isn’t always possible and often the matter goes all the way to a full-blown trial. These matters that go all the way to trial are usually only matters where the estates of the parties are fairly large.

Related Articles

Vary Rule 43 Divorce Order

Maintenance & church contributions

Debt Review and Divorce

Legal costs in a divorce case


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