Rule 43 Applications cannot be appealed against unless there is a change in circumstances of one of the parties. Some judges are of the view that they can be settled outside of court as it is an “interlocutory application”. For these reasons it is of utmost importance to incorporate relevant information when bringing the application before a judge.
It is of the utmost importance that an attorney or advocate drafts the court papers for a Rule 43 application in the High Court correctly. It is an interlocutory application and it cannot be appealed against, so a client has only “one bite of the cherry” as they say, to get it right.
Different judges in the Cape High Court have different views on how the Rule 43 application should be dealt with. The Rule 43 application is an interim order where a party to a divorce can ask for maintenance and a contribution to legal fees pending finalisation of the whole divorce.
Some judges urge the parties to settle the Rule 43 outside court. Other judges are prepared to afford the advocates or attorneys a short period of time to give their arguments in an open court. Sometimes this is only about ten minutes per side.
The judge would have read the court papers beforehand and therefore some judges do not allow lengthy arguments from the legal counsel in the open court. The courts have such a backlog that they like the counsel to keep their court arguments short and to the point.
In one matter I appeared in, in the Cape High Court, I was acting on behalf of an impecunious client, who according to my instructions was unemployed and looking after two young children without much financial assistance from her husband. She was battling to make ends meet.
The husband in this case had a thriving business according to my instructions. My client at one point had been involved in the business. The husband had cut my client out of the right of having access to the bank account of the business.
My client had been previously given the use of an expensive motor vehicle during the marriage, for which her husband had been paying. My client now found herself in a position where she was without any vehicle. Whilst before she had been living in a house valued at approximately R3 million, she also now found herself without a roof over her head.
My client’s husband, in his court papers, at one point alleged that he was making a “significant amount of payments” to my client every month. These included payments towards groceries, electricity, a gardener and many more. However, at the end of his affidavit he claimed that he was only, amongst a few other things, prepared to pay R3,000 maintenance for the children (R1,500 per month per child).
The judge made a decision in the end that my client be awarded R5,000 per month per child, plus medical expenses for her and the children, use of a vehicle and R10,000 per month personal maintenance for herself, pending finalisation of the divorce, as well as a R30,000 contribution to her legal fees.
The court looked at the affidavit where the husband had signed (under oath) that he had already been making a “significant amount of payments” and decided that he was in a position to afford what my client was asking for on her papers. Whether he had or had not been aware of what he was signing, he still had signed it and the court had to accept it.
That is why it is so important for legal counsel to ensure that the court papers are correctly drafted. They cannot be rectified in court. There is only “one bite of the cherry”.
As far as legal costs are concerned in a Rule 43, different judges also have different views on how costs should be awarded. Some judges do not believe in awarding a “token” contribution towards costs, e.g. if the applicant asks for R30,000 towards costs the judge will not only award a R5,000 or R10,000 contribution for example, but will award the full R30,000.
In my case we asked for a R30,000 contribution and the court awarded the full amount. Some judges are of the opinion that the legal costs in the High Court are so high that they will not reduce what is asked for.
The Rule 43 application is so important to the outcome of the whole divorce. It sometimes sets the tone for what the end result will be. It is vitally important that the court papers are correctly drafted.
article written by Cape Town divorce attorney, Peter M Baker
Application to vary Maintenance Order
Pre-divorce maintenance payments