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Vary Rule 43 Divorce Order

Application to vary or rescind a divorce order in terms of Rule 43(6) - Papadolambis v Papadolambis (790/2011) [2012] ZAECPEHC 26 (26 April 2012)

In terms of Rule 43(6), an application can be brought to Court to vary a Rule 43 Order, if there has been a change in circumstance to that circumstance which existed at the time when the Rule 43 Order was made an Order of Court.

The latest case dealing with a Rule 43 Application is that of Joy Papadolambis v Emmanuel Stavros Papadolambis. This was heard in the Eastern Cape High Court. In the original Rule 43 Order the Respondent was ordered to pay interim maintenance of R10 000 per month to the Applicant. In this new application she sought an increase of R6 000 per month in respect of the maintenance and a contribution towards her legal fees. 

The Applicant alleged that the change in circumstance had arisen as a result of her having to vacate the common home which had since been sold. She claimed that she now had to pay rental of R7 150 per month. The Respondent however did not dispute the change in the Applicant’s circumstances, but claimed that he could not pay the increased amount.

Rule 43(2) requires an applicant to “deliver a sworn statement in the nature of a declaration setting out the relief claimed and the grounds therefore”. The courts encourage short affidavits. Lengthy affidavits sometimes amount to no order being made, as they are seen as being an abuse of the court process. 

In the case of Patmore v Patmore 1997 (4) SA 785 WLD which is referred to by the Judge in this case, the Court refers with approval to Colman v Colman 1967(1) SA 291 (C) AT 292A wherein the Court held that:
The whole spirit of Rule 43 seems to me to demand that there should only be a brief statement by the applicant of the reasons why he or she is asking for the relief claimed and an equally succinct reply by the respondent and that the court is then to do its best to arrive expeditiously at a decision as to what the order should be pendente lite”.

In this application the Applicant’s affidavit was 29 pages long. It also consisted of 34 pages of annexures, and the two page notice in terms of rule 43(6). The Judge was of the view that it was not necessary for the Applicant to attach the 7 page lease agreement in respect of the new premises. The Court found that it was also unnecessary for her to attach the Rule 35 notices that had been served on the Respondent.

The Court also found that the Applicant’s 10 page reply to the Respondent’s answering affidavits was in conflict with the letter and spirit of Rule 43. As a result the Judge had to consider the papers filed in the previous application as well.

The application was struck from the roll. There was also no order as to costs. This case illustrates the importance in keeping Rule 43 Applications short and to the point. These applications are decided on the papers, and the judges do not have the time to read through lengthy documentation which is not always relevant to the matter.

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