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Divorce Rule 43 Application

The Rule 43 Application is one if the most fascinating applications, which quite often is raised during a divorce case. Due to the length of a divorce case, which sometimes lasts a year or longer, the wife very often needs to apply to court for maintenance and a contribution towards her legal fees. This is where her attorney would advise her to bring a so-called “Rule 43 Application” to court.

In the recent case of Butcher v Butcher 2009 (2) SA 421 (C) the husband and wife were no longer living together. The wife intended to bring a divorce action against her husband, and applied in terms of “Rule 43” of the Court Rules for maintenance and a contribution to her legal costs. The Rules also state that if you are intending to institute a divorce action you may still bring the Rule 43 Application, even though there has been no summons yet. There were two adult children in this case, one aged 18 years and the other 21 years.

In the abovementioned case the husband agreed to pay his wife maintenance “pendente lite” (as an interim measure pending finalisation of the divorce). He refused however to pay for the children's maintenance and averred that they were over the age of 18 years and had to claim maintenance from him if they wanted maintenance.

The court in the Butcher decision awarded the wife R15, 500.00 maintenance per month, and ordered that her husband had to pay her legal costs. The husband furthermore had to retain his wife on his medical aid scheme. The court did find however that the wife could not claim maintenance on behalf of the adult children. They had to claim directly from their father if they so desired.

The aim of the so-called “Rule 43 Application” is clearly to protect a party who needs maintenance urgently. A typical situation would be where the husband has a good job whilst his wife is unemployed and the husband stops paying maintenance. The wife needs maintenance urgently and then has the Rule 43 at her disposal. The husband obviously also has his right to counter the application, or even to bring a Rule 43 application against his wife if he is the impecunious party. Other points such as contact rights to the children are also very often dealt with in the Rule 43 Application.

From a tactical point of view, where one party desperately wants the divorce to reach finality, but the other party is not co-operating, the attorney would advise his client to bring the Rule 43 application. The divorce is very often settled in full and final settlement at the Rule 43 Application, as the parties become aware of the cost implications of the divorce.

In some courts, such as the Western Cape High Court, it can take up to three years to get a trial date for a divorce. Even then, that does not mean the case will be finalised on that day. However, the Rule 43 is most convenient in bringing the parties to court at a far earlier stage and resolving key issues such as maintenance, without the parties having to wait three years for a court date.

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