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Drafted by: Nazli

What is a Rule 43 Application?
Posted on: 7 Jul, 2017

What is a Rule 43 Application?

In Cape Town, an uncontested divorce can be finalised in as little as 3 – 8 weeks from the date of signing a divorce settlement agreement. The contested divorce process takes much longer. What happens when the spouse who usually supports the family financially, decides to stop when the divorce process starts? Who will pay for household expenses and the children’s expenses in the meantime? What can a spouse do if he/she is left without funds because of this? And what happens if your spouse is the one with the finances and you cannot afford to litigate your matter in court the same way your spouse can afford to do? Or, you and your spouse are fighting over care and contact arrangements in respect of your minor children pending the divorce? The Rule 43 Application (Rule 58 in the Regional court) has the answer.

What is a Rule 43 Application?

A Rule 43 Application is a special High Court application for:

  • interim maintenance pending the divorce action for yourself and/or your children, which can include payment of the mortgage bond or rent, medical expenses, school fees, etc.;
  • interim care and contact in respect of minor children;
  • and/or a contribution to your legal costs.

In the Rule 43 application, you will be called the Applicant and the other party the Respondent. The Rule 43 application is a speedy remedy to bring urgent relief to the Applicant and the minor children, if applicable. In the past, the Rule 43 application was required to be short and sweet and not contain unnecessary information and annexures that will cause prolixity (longwinded and excess use of words).  In such an event the court could dismiss the application based on prolixity.

This position has changed. The Gauteng Local Division of the High Court in Johannesburg (GJ) delivered a Full Bench judgment on 12 June 2019 in E v E and related matters [2019] 3 All SA 519 (GJ) after an order by Van Vuuren AJ on 20 September 2018 referring three Rule 43 applications to the Full bench because the conflicting judgments of that division brought Uniform sub-rules 43(2) and (3) into focus. The judgment by the Full bench changed the position in that parties can now file their affidavits without restrictions. That said, parties are warned in paragraph 62 of the judgment that “… The lifting (of the restrictions) that this judgment proposes should not become a license to parties to express and advance views and opinions that bear no relevance to the issues before the Court.” So although the judgment states that the court shall not be competent to dismiss an application only based on prolixity, the court can still strike out the irrelevant material and averments from affidavits and make an appropriate cost order. The judgment also requires that parties (in Gauteng only for the moment) file an elaborate financial disclosure form under oath seven days before the hearing. (Hopefully, this financial disclosure form will become compulsory in divorce actions as well and not just in Rule 43 applications! It will save a lot of time and costs and will ensure full transparency by both parties from the onset.) 

Note, that either one of the parties in the divorce action (not just the Plaintiff) can bring a Rule 43 application for interim relief pending the divorce action.

Rule 43 Application – The Process:

The process is usually quite straightforward and fast – a month or two. The divorce attorney will draft a Notice of Motion* and a Founding Affidavit (Statement to the Rule 43). The founding affidavit will explain why an order for interim maintenance is required and it will set out your financial and other circumstances. The founding affidavit will also give more information regarding the care and contact to minor children, if applicable. If you are asking for a contribution to your legal costs from the other party then you will set out the legal fees that you have incurred so far, how you have financed it up to that point, your financial circumstances, and why you need the court to order a contribution to your legal fees. After the issuing and service (delivery) of the application on the Respondent, the High Court will allocate a court date for the Rule 43 hearing. The Respondent will have an opportunity to file a replying affidavit that sets out his/her circumstance. The court will still only accept two sets of affidavits; one from the Applicant and one from the Respondent. You would still need to ask leave from the court to file any further affidavits.

*A Notice of Motion is a formal document to notify the other party/parties of your intention to ask for specific relief. The affidavit annexed to the Notice of Motion (Statement to the Rule 43) sets out your circumstances and reasons why you need the relief you seek in the Notice of Motion.

What is a Rule 58 Application?

Since a Regional Magistrate’s Court may also hear divorces the Rule 58 Application is similar to the Rule 43 Application above, but applies to cases heard in the Regional Court. 

More Questions About Divorce?

Download your free copy of What You Should Know Before Filing for Divorce for quick answers in plain language or contact us.

Divorce Attorney Cape Town, Nazli WilliamsNazli Williams, owner at iedivorce, director at Patton Williams Attorneys and co-author of What You Should Know Before Filing for Divorce (2020 edition) is an admitted attorney of the High Court of South Africa, specialising in Divorce and Family Law matters. Her fields of interest include Divorce Law, Family Law, Domestic Violence Law and International Divorce Law. Her vision is to demystify Family Law processes, helping good people in plain language and with great technology, to achieve remarkable results.

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