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Divorce Reconciliation & Rule 43 Order

Do Rule 43 Court Orders fall-away if the divorce parties reconcile?

I recently had a case where I was acting for the man. A Rule 43 Order was granted in terms of which his wife was going to move out of the matrimonial home to a different suburb. Part of the order was that he would have to contribute towards the new accommodation costs of his wife.

The parties had been living together for 16 years prior to the divorce action being instituted. They had two children together. After the Rule 43 application, the wife moved out of the matrimonial home with the children into a new residence. A week after she had moved in there, she decided that she did not want to be there and moved back into the matrimonial home. My client contacted me to ask whether he was still bound by the terms of the Rule 43 order, seeing that the parties were now living together again, and were attempting to reconcile.

Whether my client above is still bound by the Rule 43 order or not, is an issue which is debatable in law. A similar situation came up in our recent case law in the Kwazulu-Natal High Court, held in Durban, in the case of Ramiah v Ramiah (8262/2008) [2012] ZAKZDHC 71 (6 November 2012). In this case there was also a Rule 43 order, which the man had not complied to. 

The order was granted on 17 December 2008. The Respondent admitted that he had not complied with the order since at least February 2010. After the order had been granted, the parties had reconciled, as is often the case in a Rule 43. Often the parties realise that it would be far cheaper to carry on living together than to get divorced. 

In February 2010 the marriage relationship between the Applicant and Respondent again broke down irretrievably. The Applicant at this stage had been involved in an extramarital affair, and the Respondent had moved out of the matrimonial home. According to the Judge in this case, this constituted an entirely new cause of action that arose when the marriage relationship broke down in February 2010, and if either of the parties wished to sue for divorce after February 2010 that party could only show an irretrievable breakdown that occurred in or after February 2010, because for almost a year prior to that they had been living as husband and wife in a normal marriage relationship.

The Respondent did not resume making the payments after he had moved out in February 2010, because he believed that the December 2008 Rule 43 order had fallen away. The Applicant only complained about the failure of the Respondent to comply with the Rule 43 order 20 months later in November 2011, at which stage she was living with another man.

The Court in the end in this case found that the Respondent was not guilty of contempt of court, as he had bona fide believed that the order had fallen away. The application therefore failed. The Applicant could not prove mala fides in the end.

When there is a Rule 43 order in place, one must be careful before reconciling. If you do reconcile the courts can view this as your having given up your rights in terms of the Rule 43 Order. This situation reminds me of a protection order also. If you have a protection order out against somebody, and you move back in with them or start communicating with them again, the protection order is often seen to have lapsed after this, even though there is still a valid court order. The court’s reasoning in this regard seems fair enough to me.

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