Given the complicated
nature of divorce proceedings, and the length of time required to finalise a
divorce, the existence of interim relief until the date of divorce is often
required by a party to a divorce who have been maintenance dependent on the
other party during the subsistence of the marriage.
Rule 58 of the
Magistrates’ Court Rules and Rule 43 of the Uniform Rules of Court make
provision for a spouse to claim interim maintenance during the litigation
process, a contribution towards costs of the pending matrimonial litigation,
interim care of a child and interim contact with a child.
Rule 43 is being used
far more often than Rule 58, because in the High Court it can take up to three
years to get a trial date for a defended divorce, whereas, in the Regional Court,
a defended divorce can be finalised within a few months. Therefore, interim
maintenance is more important in High Court proceedings, because a party will
have no other choice but to maintain himself/herself for up to three years
until the divorce is finalised. Especially in the case of housewives who raised
the children and cared for the home but have not been working or have not been
economically active for years, a three-year wait for a trial date can result in
a dire financial situation, if no provision is made for their maintenance until
the date of divorce.
The other side of the
coin is that a husband with a Rule 43 order against him, can be forced to pay
maintenance for quite a lengthy period, especially if his wife as the plaintiff
is well taken care of in terms of the Rule 43 order, then she will probably not
be in a hurry to take the matter to trial.
A party can be
entitled to a contribution towards legal costs. If a husband can afford a
lawyer and good legal representation, his wife can be put in a position to
litigate on an equal basis, by a Rule 43 or Rule 58 order compelling a
contribution towards the wife’s legal costs.
Since it is possible
to get a trial date in the Regional Court quite speedily, magistrates are often
not inclined to waste too much time on an interim maintenance application,
because it will not have a long-term effect, and it is better to determine the
issue of maintenance at trial.
Rule 43 and Rule 58
orders cannot be taken on review, and cannot be appealed against, thus a
husband with a detrimental Rule 43 or Rule 58 order against him can only apply
for a variation of the original order, based on a change in financial
circumstances. However, if he can afford to comply with the order, he has no
other choice but to comply, and a failure to comply can lead to a contempt of
court application against the husband. Rule 43 or Rule 58 orders can sometimes
lead to parties settling the whole divorce sooner, especially in the High Court
where a party will be compelled to comply with the Rule 43 order for three
The following factors are
taken into account in the determination of maintenance: existing or prospective
means of each of the parties, their respective earning capacities, financial
needs and obligations, the age of each of the parties, the duration of the
marriage, the standard of living of the parties prior to the divorce, their
conduct so far as it may be relevant to the breakdown of the marriage, and any
other factor which in the opinion of the court should be taken into account.
v Taute 1974 (2) SA 675 (E), it was determined that interim
maintenance will be determined according to the “marital standard of living of
the parties, her actual and reasonable requirements and the capacity of her
husband to meet such requirements.” It was further held that, “I have found
nothing, however, in the decisions to which I have been referred which justify
in such maintenance the inclusion of extraordinary or luxurious expenditure
even in the case where the husband is ‘very wealthy’ or ‘very rich’.” This
decision makes it clear that a wife will not be entitled to anything that she
was not entitled to during the subsistence of the marriage, and that a court
will not make a finding for luxurious expenditure.
Kroon v Kroon 1986 (4) SA 616 (E) held that, “The position in our law is
that no maintenance will be awarded to a woman who can support herself.” It was further held that, “What does the plaintiff
want and what does she need? Wants and needs are two different things. People
usually want more than they need.” This decision makes it clear that a woman
who has no need for maintenance, because she earns an income and can support
herself, will not be entitled to maintenance.
If parties were married for a long period
of time, a party would be more likely to get interim maintenance, and permanent
maintenance at trial. Furthermore, the age of the parties would play a
significant role in determining interim maintenance and permanent maintenance,
because, for example, for a 60-plus woman with no formal education, and who
have no formal work experience, it will be difficult to obtain employment.