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Interim court orders in divorce proceedings: A change in approach

Two recent judgments of the Western Cape High Court on interim orders pending divorce proceedings indicate a change of approach.  In deciding on applications under High Court Rule 43 the Court in these cases appears to caution against unduly favourable interim maintenance orders and unduly hefty contributions towards the legal costs of applicants.

Rule 43 proceedings in the High Court and Rule 58 proceedings in the Regional Court (collectively referred to as “the Rule”) were designed to assist litigants in divorce proceedings to approach a court to grant an interim order, pending the finalisation of the divorce proceedings.  The Rule allows the litigant to seek relief in respect of the following:

  1. Interim maintenance for the applicant and/or the parties minor child/children;
  2. Interim care and contact in respect of the minor child/children; and
  3. A contribution towards the legal costs of a pending divorce.

A trend started to emerge where litigants have taken advantage of the Rule and sought inflated maintenance claims and unsubstantiated contributions towards their legal costs.  This could place the applicants in a more favourable position, resulting in them not wanting to settle the divorce while receiving interim maintenance for an indefinite period (until the divorce is finalised) for a greater amount than what they would have received upon the finalisation of the divorce.

In the case of MD v MD (43212/2021), the court considered the importance of the Rule in that it seeks to place both parties on an equal footing.  The court referred to the earlier judgment in AF v MF 2019 (6) SA 422 (WCC), where the court said that under the Constitution the “equality of arms” is an inherent element of our due process in both civil and criminal law, because both parties to litigation must be treated in a manner that ensures that both are procedurally in an equal position.

This Rule emanates from the historical wealth disparity between men and women, where men were generally the financial providers and in control of the household finances.  Consequently, women were more likely to be prejudiced in divorce proceedings and would only receive financial assistance when the divorce proceedings were finalised.  The Rule has been a necessary legal tool to provide a remedy in cases where either of the parties may be financially prejudiced during divorce proceedings and may settle at terms unfavourable to them because they could not afford to litigate.

In the case of B R v D R (14189/2022) [2023] ZAWCHC 59, Kusevitsky J relied on the judgment in Nilsson v Nilsson [1984] 1 All SA 520 (C) (“Nilsson”) and found that Rule 43 proceedings are not meant to provide a meal ticket for interim maintenance pending the parties’ divorce.

In the unreported case, S K v J L K (3198/23) [2023] ZAWCHC 62, Thulare J also found that Rule 43 was not meant to provide an interim meal ticket.  He held that the Rule was enacted to ensure justice in that the parties are treated fairly vis-à-vis one another.  He added that the Rule was also not intended to result in an order which will for all intents and purposes be a certificate of exemption for legal practitioners to cover their fees in advance.  The totality of what is covered by the Rule has its basis in the duty of support that the spouses owe each other and that parents owe to their children (as stated in Carry v Carry 1999 (3) SA 615 (C) at 619H-I).

Thulare, J found in S K v J L K, that the applicant had exaggerated her expenses and understated the support that the respondent provided to her and the children.  The applicant’s conduct was found to be dishonourable, and this had no place in judicial proceedings.

In B R v D R, Kusevitsky observed that the original purpose of the Rule was to assist claimants, usually women, who found themselves in a weaker financial position than their spouses in divorce proceedings.  However, in recent times, the Rule has been abused by applicants who make unrealistic and inflated claims, which has led to unintended consequences, such as delaying the finalisation of the main divorce action.  The Court emphasized that the basic tenets of the Rule have sometimes been forgotten and, in some instances, abused.

In another unreported decision in the Gauteng Local Division High Court, GB v DS (16/08/2018) under case number 16158/16, Keightley, J said the following:

“… the Rule is designed to provide interim cover to the spouse who has been financially dependent on the other spouse, because of their particular marital circumstances, and who thus has a genuine need for such support to continue until the matter is finally dealt with on divorce. This being the case, a claim for interim maintenance would normally be accompanied by a claim for maintenance on divorce. In the absence of such a claim, the implication is that the critical requirement of financial dependency on the other spouse, which underpins the application for interim maintenance, is missing….”

When deciding on an interim order in divorce proceedings, the Court in Taute v Taute 1974 (2) SA 675 (E), stated that there is no general principle upon which an application under Rule 43 can or must be based.  Each case must depend on its own particular facts. It was also reiterated that a claimant for maintenance pendente lite was not entitled, as of right, and without more, to maintenance sufficient to keep him or her in the same lifestyle as that enjoyed during the marriage.

It is important to note that once an order has been granted in terms of the Rule the order is not appealable under section 16(3) of the Superior Courts Act 10 of 2013, because the effect of the order is not final.  However, a party can in the event of a subsequent material change in the circumstances of either party or a child, or should the contribution towards costs prove to be inadequate, approach the Court under Rule 43(6) or Rule 58(6) to amend the existing order.

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