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Category: Divorce

Can I claim interim relief pending my divorce suit?

March 22, 2022 / / Comments Off on Can I claim interim relief pending my divorce suit?

Divorce can often be an extremely stressful and exasperating process, and even more so when one spouse enjoys complete financial stability and the other has to endure a dire financial position. Such cases clearly create a huge imbalance amongst parties to the divorce suit. South African law, however, provides relief for a party who may be prejudiced by this imbalance.

A spouse who plans on filing for a divorce or is currently in the process of getting divorced, may bring an application to the High Court for interim relief in terms of Rule 43 (or in terms of Rule 58 if the application is brought in the Magistrate’s Court) for an order granting any of the following:

  • Interim Maintenance (including child and spousal maintenance);
  • interim custody of the children and/or interim access to the children;
  • and/or a contribution towards the legal costs of the pending divorce proceedings.

The purpose of a rule 43 application 

A rule 43 application provides a relatively speedy and inexpensive remedy when maintenance is sought while the divorce proceedings are pending. Divorce proceedings can often be an extremely lengthy process and can, in some instances, take years to finalise. It is for this reason that a rule 43 application is available to a party seeking interim relief.

The procedure to obtain interim relief in terms of rule 43 

An application for interim maintenance can be served on the other spouse prior to the issuing or service of a divorce summons, simultaneously with the divorce summons, or after a notice of intention to defend is received.

The spouse seeking interim relief (the applicant) will have to file what is known as a ‘founding affidavit’ with the High Court. The founding affidavit must set out all the relevant facts related to the divorce and why the applicant is of the opinion that they are entitled to interim maintenance/relief from the other spouse (the respondent).

The applicant will need certain prescribed documentation to file an application for interim maintenance, including:

  • A notice in terms of rule 43, requesting the respondent to file an opposing affidavit within 10 days from receipt of the application;
  • an affidavit accompanying the rule 43 notice;
  • and an annexure setting out the applicant’s assets and expenses.

It should be kept in mind that a rule 43 order is an interim order and thus cannot be appealed. The rule 43 order remains in force until the parties to divorce proceedings settle or until the divorce is finalized. It is, therefore, of extreme importance that all relevant documents needed for the application are in order and sound legal advice is sought and obtained before bringing the application before a court. We have a number of professionals in our family law department who can assist you with your application.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Important concepts defined in The Domestic Violence Amendment Bill

October 26, 2021 / / Comments Off on Important concepts defined in The Domestic Violence Amendment Bill

The Domestic Violence Amendment Bill (the Bill) was introduced in the National Assembly in September 2020 but has yet to be signed  into law by the President. There are various positive and helpful amendments presented in the bill. The Bill will come into operation on a date fixed by the President through the proclamation in the Gazette.

The concept and definition of domestic violence has been broadened extensively in the Bill. It now includes spiritual abuse, elder abuse, coercive behaviours, controlling behaviour, and exposing or subjecting children to behaviour listed in the domestic violence definitions clause. It also makes provision for conduct that harms, or inspires the reasonable belief that harm may be caused to the Complainant or a related person.

Some of the amendments in the Bill are summarised below:

Elder abuse, sexual harassment, and spiritual abuse has now been defined

Elder abuse refers to abusive behaviour in a relationship with an older person and can include financial abuse, physical abuse, emotional abuse, as well as controlling behaviours like social isolation or intentional and unintentional neglect.

It unfortunately happens frequently that parents invite their children to live with them and after a short while elder abuse commences. The Bill aims to provide the necessary protection to the elderly.

‘Sexual harassment’ is a separate section under ‘Sexual abuse’ and inter alia means:

  1. Unwelcome sexual attention from a person who knows or ought to reasonably know that such attention is unwelcome;
  2. Unwelcome suggestions, gestures messages and remarks;
  3. Implied and expressed promises or reward for complying with a sexually oriented request.

There have also been various court cases recently where pastors, priests, and other religious leaders have been charged with inter alia, rape and or sexual assault and invariably it happens that over a period of time there has been the use of spiritual or beliefs and practices to control and dominate a person. An interdict can now be obtained as soon as there has been spiritual abuse.

Duty to report commission of domestic violence.

It is an offence should a person fail to report his / her knowledge that an act of domestic violence has been committed against a child, person with a disability or an elderly person.

Arrest by peace officer

A peace officer may, without a warrant, arrest any person at the scene of an incident of domestic violence, and may enter the premises where an element of violence has allegedly been committed during an incident of domestic violence without a warrant.

Positive duty on those in the health care and education sector.

The Bill places a positive duty on those in the health and education sector to screen, counsel, and provide emergency medical treatment to a victim.

Online application and service

An application may be brought by submitting an online affidavit as prescribed, and may be brought outside ordinary court hours if the court has a reasonable belief that the complainant may suffer harm.

The interim protection order may be served by the clerk of the Court electronically.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Maintenance and divorce: All you need to know

March 31, 2021 / / Comments Off on Maintenance and divorce: All you need to know

The court may grant an order that one party should pay the other party spousal maintenance during and after divorce proceedings. Whether a spouse is entitled to receive spousal maintenance rests in the hands of the court and is regulated by section 7 of the Divorce Act 70 of 1979.

The parties can opt to settle the matter of spousal maintenance in a settlement agreement and make this an order of the court. Section 7(1) of the Divorce Act provides that a court granting a decree of divorce may grant an order of payment of maintenance in accordance with a written agreement.

In the case where no agreement has been reached between the parties, the court may grant a spousal maintenance order in favour of a party to the divorce proceedings, considering all the relevant factors.

Section 7(2) states that a court should consider the following factors when considering an order of spousal maintenance: 

  • The 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 in so far as it may be relevant to the break-down of the marriage;
  • An order in terms of subsection (3); and
  • Any other factor which in the opinion of the court should be taken into account.

Upon consideration of the factors of section 7(2) the court will make an order which is just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.

When one spouse is dependent on the other, he/she is likely to be successful with a spousal maintenance order in his/her favour having due regard to the above-mentioned factors.

The Supreme Court of Appeal held in EH v SH 2012 (4) SA 164 (SCA) that it would only be just for a maintenance order to be issued by a court where a party applying for the relief can establish a need to be supported by the other spouse.

A spouse who is dependent on the other spouse also has the option to apply for interim spousal maintenance in accordance with rule 58 in the Magistrate’s Court and rule 43 in the High Court. Interim spousal maintenance is relief granted on application by the respective court while the divorce proceedings are still pending. This remedy is available to a dependent spouse since the duration of divorce matters has the potential to be lengthy.

It is worthy of note that the matrimonial property regime (in community of property, out of community of property including the accrual system, or out of community of property excluding the accrual system) the parties have entered into may be a factor that the court could consider but does not automatically include or exclude a party to be entitled to spousal maintenance.

The court will thus only grant an order for spousal maintenance when one spouse is dependent on the other and a need for maintenance can be established having due regard to the relevant factors of section 7(2).

Reference List: 

  • Divorce Act 70 of 1979
  • EH v SH 2012 (4) SA 164 (SCA)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Interim maintenance until date of divorce – husband’s nightmare and wife’s weapon?

March 27, 2019 / / Comments Off on Interim maintenance until date of divorce – husband’s nightmare and wife’s weapon?

This article gives an overview of the purpose of interim maintenance applications, what considerations are to be taken into account when determining maintenance, the difference between the nature of an interim maintenance application in the Regional Court and High Court, and the possible detriment to husbands with an interim maintenance order against them.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 years.

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.

In Taute 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.

In Nilsson v Nilsson 1984 (2) SA 294 (C), it was determined that, “The shorter the duration of the marriage, the more important the conduct of the parties within the relationship – their respective ‘guilt’ or ‘innocence’ – would ordinarily be in relation to the question whether maintenance should be paid at all.” If a woman is responsible for the breakdown of the marriage, her conduct would weigh against her getting interim maintenance, especially in the case of a short marriage.

Interim maintenance remains a thorny issue, and in an ideal world, such orders would not have been necessary at all, which is more or less the case in a Regional Court divorce. However, in the High Court, it remains an important instrument to ensure that a divorce is handled in a fair manner, and that a wife is not being left without maintenance, or unable to effectively litigate against her husband.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Can I avoid a drawn-out legal battle when I get divorced?

October 26, 2018 / / Comments Off on Can I avoid a drawn-out legal battle when I get divorced?

This article gives a brief overview of the normal divorce procedure, and how the procedure differs if the parties are able to reach an agreement before even issuing a summons for divorce. It also underlines the benefits of concluding a settlement at an early stage.

Normal procedure in an opposed divorce:

Divorce proceedings can lead to a long, drawn-out and very expensive procedure if the parties are not able to reach a settlement before going to trial. Once the plaintiff issues a summons for divorce and the summons has been served on the defendant, the defendant has ten days to defend the matter, and a further twenty days to answer to the allegations contained in the particulars of the claim. Because divorce proceedings can take years to finalise, especially in the High Court, there is also the possibility of an interim maintenance application in both the Regional and High Court, which leads to further delays.

Once both parties have discovered what documentation they wish to use at trial, a pre-trial conference needs to be conducted in order for the court to determine whether the matter is trial ready. If the matter is declared trial ready, a trial date will be allocated, and the parties can be up to three years down the line from the date of issuing the summons.

Settlement before the summons has been issued:

The abovementioned procedure can be avoided to a large extent, if the parties who decide to get divorced, agree to do so on an amicable basis from the start, and is able to reach a settlement before instituting legal proceedings. The settlement agreement in divorce proceedings is referred to as a “consent paper”.

Especially in divorces with regards to marriages in community of property, or marriages out of community of property where the parties do not have substantial assets to divide, it is a viable option to conclude a settlement as soon as possible, as the division of the assets should be fairly simple.

Consent paper:

The parties need to address all the patrimonial consequences of the divorce in the consent paper. An agreement needs to be reached on the division of movable and immovable assets, and the possible realisation of certain assets in order to make the division of the assets easier. Furthermore, if there are minor children involved in the divorce, a settlement needs to be reached as to with which parent the minor children will reside, and the visiting rights of the other parent. The maintenance of the minor children will also need to be addressed, and the possible rehabilitative/lifelong maintenance of a maintenance dependent spouse.

Procedure of a settled divorce:

If the parties reach a settlement by means of a consent paper before a summons is issued, the consent paper will be attached to the particulars of the claim of the summons. The summons will still need to be issued and served by the sheriff on the defendant. Once the summons has been served, and the ten days to defend the matter has passed (which will happen in a case which was settled before the issuing of the summons), the plaintiff in the matter can request a date from the registrar of the court on the unopposed roll. Once a date is received, the matter still needs to be set down in accordance with the rules of court, and the defendant needs to be notified of the date. However, on the court date itself, only the plaintiff and his/her legal representative need to be in court. The terms of the consent paper will then form part of the divorce order.

Benefits of an early settlement:

The benefits of reaching an early settlement in a divorce are that the parties will not have to spend large sums on legal costs, which would be the case if a divorce is opposed and go to trial. It will also ensure the swift conclusion of the matter, which can be concluded in a few months. Children benefit from a swift settlement of a divorce, as they do not have to live through a drawn-out legal battle, in which they usually become bargaining tools. Thus, an early settlement is an outcome which should be endeavoured for, as it is in the best interests of all parties involved.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

DIVORCED STAY AT HOME PARENT

January 24, 2018 / / Comments Off on DIVORCED STAY AT HOME PARENT

Are you recently divorced and a stay at home parent? Know your rights and get what you deserve!

In South African law, section 7(2) of the Divorce Act deals with the payment of maintenance in situations where no settlement agreement has been entered into between the parties, and it’s up to the courts to deal with the matter of maintenance.

What happens if I get divorced?

Rehabilitative maintenance refers to divorce situations where a maintenance order is given for a certain time after the divorce is finalised. The court makes a decision based on certain factors, including; the divorcing couple’s current and potential future financial means, their ages, the length of the marriage, their standard of living before the divorce, and any behaviour that may have contributed to the divorce.

In South Africa, no maintenance will be awarded to someone who can support themselves, or has the ability to support themselves. If the stay at home parent has not abandoned or downscaled his/her career to stay at home to take care of the children, no maintenance will be awarded.

How can the law protect me?

An award for rehabilitative maintenance is usually given when the court finds that a marriage has significantly affected the ability of one person to support themselves. When maintenance is awarded, the court takes into consideration the amount of time it will take for the stay at home parent to upskill him/herself to re-enter the job market. In many cases, it isn’t possible for the stay at home parent to re-enter the job market, and they may find themselves without an income once the period of rehabilitative maintenance is over.

Courts need to look at how employable the stay at home parent is when he/she seeks a maintenance award. If employability isn’t possible, the stay at home parent should be granted maintenance until death or remarriage.

The ages of the couple’s children will also be taken into consideration, as well as which parent will be the primary resident parent. Rehabilitative maintenance could be awarded to the stay at home parent to take care of the children until they can support themselves.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

http://www.w24.co.za/Work/Legal/Stay-at-home-spouses-divorce-and-maintenance-20150219

http://www.justice.gov.za/legislation/acts/1979-070.pdf

UNOPPOSED AND OPPOSED DIVORCE: WHAT’S THE DIFFERENCE?

January 25, 2017 / / Comments Off on UNOPPOSED AND OPPOSED DIVORCE: WHAT’S THE DIFFERENCE?

My spouse said that he/she won’t ‘give me a divorce’. What can I do? Your spouse can oppose the divorce, but it is the Court that grants a divorce, not your spouse. If you convince the court that the marital relationship has irretrievably broken down, the court can grant a decree of divorce even if your spouse does not want to get divorced.

There is a process, called a ‘rule 58’ application, whereby you can ask the court to give an order regarding the care of and access to the children and maintenance pending the finalisation of the divorce. You can even ask for a contribution to your legal costs.

How much does it cost?

In the case of an unopposed divorce (i.e. there is no dispute between yourself and your spouse about the divorce or what should happen), your fees are likely to be limited to the Sheriff’s fees and minor expenses for transport, photocopies, etc. Sheriff’s fees can vary widely, depending on the distance he has to travel and how many attempts he has to make at serving pleadings on the opposing party, but generally these fees would be a few hundred rand. Where a divorce is opposed, the costs become unpredictable and entirely dependant on the specifics of the case.

How long does it take?

Where a divorce is unopposed and there are no complications or children involved, it can sometimes be finalised in as little as four weeks.

Where a divorce is opposed, it can easily take two to three years, or more. In most cases, however, divorces get settled before the parties have to go to Court – even where the divorce started out as an opposed divorce. As soon as the parties in an opposed divorce reach a settlement agreement and the divorce becomes unopposed, it can again be possible to finalise the divorce in as little as four weeks.

What you need to do

Before you approach the Court to start divorce proceedings, you will should get certified copies of as many of the following documents as you can:

  • Your identity document
  • Your Ante-Nuptial Agreement, if any
  • The children’s births certificates, if any and
  • Your marriage certificate

Also make sure you have the following information handy:

  • Your full names, surname, identity number, occupation and place of residence
  • Your spouse’s full names, surname, identity number, occupation and place of residence
  • Date when you got married and where the marriage took place
  • Children’s full names, surnames, identity numbers and
  • Comprehensive details of any funds (such as pension funds, retirement annuities and provident funds) which you or your spouse belongs to.

You may institute divorce proceedings in either a High Court or Magistrates’ Court (Regional Court), but where the parties are representing themselves in a simple divorce, they should approach the Regional Court.

Reference:

http://www.legal-aid.co.za/selfhelp/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Fast divorces in Cape Town

August 12, 2014 / / Comments Off on Fast divorces in Cape Town

A4blDivorces can be heartbreaking, painful, costly and time consuming when parties cannot reach a settlement between themselves.

However, all hope is not lost. Many young couples choose to get married in terms of an antenuptial contract, which states what each party declared to be excluded from the matrimonial estate and will remain each party’s exclusive property.

If a couple does not have an antenuptial contract when they choose to go their separate ways, but already have a settlement in mind, whether it be with regard to property or children, they have the option of entering into a Consent Paper.

A Consent Paper states the terms on which the parties choose to divide their property or items that they have accrued over time. A Consent Paper should also deal with the maintenance, child care, medical care and any other issues that can arise with regards to minor children. A Consent Paper can be edited many times before it is endorsed by the Court, as long as both parties are in agreement. Once the parties are in agreement and summons has been served on the Defendant, the parties can obtain a final divorce order as soon as the following week. It is important to take note that where there are minor children involved, the Consent Paper must first be endorsed by the Family advocate in order to make sure that the arrangements regarding the care of such minor children are in line with the provisions of the Children’s Act. If there aren’t any issues with the arrangements as set out in the Consent Paper the Family advocate usually only takes about two days to endorse the Consent Paper.

A divorce order incorporating the Consent Paper may be obtained in the Regional Court or the High Court. The Cape Town High Court has jurisdiction over the Western Cape and is a speedy court when it comes to divorce matters that have been settled. The parties can choose their own divorce date in the Cape Town High Court provided that such date falls on a court date. This notice serves as booking for that date and as notice to the Defendant of such date.

One or both of the parties have to be present in court on the date as set out in the Notice of Set Down. However, it is advisable to use the services of an advocate in order to make the process as efficient and painfree as possible.

A divorce is never pleasant, but one should remember that once upon a time, the same parties that are asking for a divorce now, made promises to each other to take care of each other for better or for worse. Divorces don’t need to cost many years and tears, it can be finalised amicably and quickly. Even though the marriage itself was not meant to be, the memories will last forever.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

True love, or easy paycheck?

July 9, 2014 / / Comments Off on True love, or easy paycheck?

A1blThe issues that are dealt with in this article is whether a partner is entitled to maintenance from the other partner in terms of a Divorce Order if the partner that is asking for maintenance, is living with / or has a new relationship, where that partner is already maintaining him / her.

We will deal with case law and the Maintenance Act 99 of 1998.

You’re soon to be ex-wife has moved on and is now happily living with a new partner. They are in a stable, supportive relationship and her new partner doesn’t seem short of cash. Everyone is living happily ever after, so why should you pay maintenance to your ex-wife?

The judgment of Harlech-Jones v Harlech-Jones [2012] ZASCA 19 has reference. The issue in this case is whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce.

The duty of support

Neither spouse has a statutory right to maintenance. The language in the Divorce Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such. The court will consider the following factors before deciding whether to award spousal maintenance:

  1. The existing or prospective means of each party
  2. Their respective earning capacities
  3. Their financial needs and obligations
  4. Their age
  5. The duration of the marriage
  6. Their standard of living prior to the divorce
  7. Their conduct, if relevant, to the breakdown of the marriage
  8. An order for the division of assets
  9. Any other factor which in the court`s opinion, should be taken into account.

The discretionary power of the court to make a maintenance award includes the power to make no award at all. Our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible.

Harlech-Jones v Harlech-Jones [2012] ZASCA 19

Through a long line of cases dealing exclusively with maintenance pendente lite (awaiting litigation), it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another partner.

As mentioned above, the Supreme Court of Appeal  gave an interesting judgment in the matter of Harlech-Jones v Harlech-Jones [2012] ZASCA 19. The question raised in this matter was inter alia whether it would be against public policy for a man to pay maintenance to his wife while she is living with another man.

The parties, who were married to each other in December 1972, were divorced in January 2011, after many years living apart and many legal battles. In terms of the Divorce Order, the Appellant (the former husband) was ordered to pay the Respondent the sum of R2 000-00 per month as maintenance with effect from 1 February 2011. With leave of the High Court, the Appellant then appealed to the Supreme Court of Appeal solely against the maintenance order.

By the time the Divorce Order was granted, both parties had formed relationships with other partners, and the Respondent had been living for some three years with another man who fully and unconditionally maintained her.

Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G; Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O) , it was argued that it would be against public policy for a woman to be supported by two men at the same time.

The court was of the opinion that while there are no doubt members of society who would endorse that view, it rather speaks of values from times past and the court was of the opinion that in the modern, more liberal age in which we live, public policy demands that a person who cohabits with another should not for that reason alone, be barred from claiming maintenance from his or her spouse.

However, in light of facts of the present case, where the Respondent was being fully maintained by the man with whom she had been living with for years, the Respondent failed to show that she was entitled to receive maintenance from her former husband.  The Appeal therefore succeeded, and the maintenance order was set aside.

Therefore, if you feel that you are currently paying your ex-partner maintenance which he / she do not deserve, contact your legal representative and take back the money that you worked so hard to obtain!

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Rule 43 applications

July 9, 2014 / / Comments Off on Rule 43 applications

A2blDivorce proceedings can take years to come to conclusion and this leaves certain issues unresolved until such a time. A Rule 43 Application can be used to find a comparatively speedy interim solution to important issues such as maintenance and access to minor children.

If you are involved in an opposed divorce action you may wait years before getting your final divorce order. This means that your legal costs may end up sky high and your spouse may not be contributing to living costs of yourself or your children. There may also be issues with regard to custody of minor children or access to minor children that will eventually be resolved at the completion of the divorce proceedings for which you need to make interim arrangements. This is particularly helpful where one parent is preventing the other from having access to the minor children born out of the relationship. Luckily there is a way of dealing with these issues while you are still engaged in divorce proceedings.

A Rule 43 Application allows you to claim for a contribution towards the costs of a pending matrimonial action, for maintenance pendente lite (awaiting litigation), for interim custody of any child and for interim access to any child. [1] In order to do this you need to deliver a sworn statement which sets out what you are claiming for as well as the grounds upon which you are relying. A notice must also be attached to this sworn statement which you’ll find in the Uniform Rules of Court. These documents will usually be drafted by your attorneys after having consulted with you. Remember that a sworn statement must be signed before a commissioner of oaths. Make sure to read through this document thoroughly to make sure that it is complete and accurate before you sign it.[2]

A Rule 43 Application must be served by the sheriff and the Respondent must deliver a sworn reply to the sworn statement within 10 court days of receiving it. If the Respondent does not reply then he shall be barred from doing so. If the Respondent does reply then the Registrar must as soon as possible thereafter bring the matter before the High Court for summary hearing on 10 days notice to the parties.[3]

The High Court may then make an order that it deems as just or it may dismiss the Application if they can see from the sworn statements that the claims have no proper grounds or for any other reason that they deem to be just and fair. The court also has the power to change its decision through the same procedure where there has been a material change in the circumstances of either party or the circumstances of a child takes place or where the contribution towards costs proves to be inadequate.[4]

If you are involved in opposed Divorce proceedings and are struggling with any of the abovementioned issues then consider mentioning your interest in making an Application to the High Court in terms of Rule 43 to your legal representation if this remedy hasn’t been brought to your attention yet. It is an effective remedy to getting relief in what can be a long and drawn out process and decreases the chances of one party being prejudiced where they do not have the finances to fund the legal costs of the divorce proceedings.

References

  • Rule 43 of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[1] Rule 43(1)(a) – (c) of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[2] Rule 43(2) of the Uniform Rules of Court

[3] Rule 43(3) & (4) of the Uniform Rules of Court

[4] Rule 43(5) & (6) of the Uniform Rules of Court

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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