Divorce proceedings can sometimes be lengthy and expensive, with one spouse often being placed in a precarious financial position. Compounding this, there may be disputes regarding the care of and access to the children.
In terms Rule 43 of the Uniform Rules of Court a spouse can apply to the High Court to obtain:
- Interim maintenance;
- A contribution towards the costs of the divorce proceedings; and / or
- Interim care and contact of any child.
The procedure contemplated by Rule 43 involves both parties filing papers, after which the matter is argued in court.
Recently, the constitutionality of Rule 43 was challenged. The husband in this matter raised various arguments including the following: there is a risk of a spouse delaying finalisation of the divorce in order to receive maintenance for a longer period of time; no guidelines are given regarding the calculation of maintenance; various constitutional rights (including the rights of children) are infringed; and, any order which is made is not appealable.
The court rejected this challenge, and some of the interesting points taken from the judgment are provided below:
- Rule 43 only sets out the procedure which must be followed for a spouse to obtain interim relief.
- Even if Rule 43 is abolished, issues of interim maintenance, access and care of children can still be dealt with and heard by the court. The case was misdirected because there was no challenge to these substantive aspects of the law.
- Any order made in terms of Rule 43 is only intended to operate for an interim period, with final adjustments to be made once the divorce is finalised.
- The Constitutional Court had already ruled that the fact that a Rule 43 order is not appealable does not make it unconstitutional. An aggrieved spouse is entitled to ask the court to vary any order that has been made, which limits any potential injustice or abuse.
- The common law applies in determining how much maintenance should be paid.
- The argument that Rule 43 infringed various constitutional rights was rejected. With regards children, it was held that any court hearing a Rule 43 application has to consider what is in the best interests of the child when determining access or care of children. There could therefore be no infringement of the rights of children.