Interim maintenance can be a saving grace. Don’t let it become a weapon.
Have you heard of a Rule 43 application? If you’re going through a divorce, chances are that you have. According to Stats SA, in 2016 there were 25,326 divorce court orders, and most of them involved an application for an interim maintenance order by one or other spouse. Divorce proceedings don’t always go smoothly, and sometimes the process can go on for a considerable length of time. However, certain issues often can’t wait for the final divorce order and need immediate attention. For example, there may be disputes regarding access to minor children. Or a non-earning spouse may require interim maintenance when no longer in receipt of a joint household income. The lower- or non-earning spouse may also require financial assistance with legal costs, to ensure fair and equitable access to due process of law.
The downside of interim maintenance
A Rule 43 order can be a lifesaver for many. Unfortunately, it can also be used as a weapon. Because it is an interim measure, the courts tend to deal with Rule 43 applications rather quickly, allowing injustices to arise.
A maintenance order, particularly if hastily calculated, can exhaust the payer financially. A Rule 43 order cannot be appealed because it is an interim measure, and can only be altered if a substantial change in financial circumstances can be demonstrated. Occasionally a spouse in receipt of maintenance may try to prolong the divorce process unnecessarily to enjoy the benefits for as long as possible. In particularly acrimonious divorces, the recipient of maintenance may delay proceedings to wear the other party down until they give in to all demands in an effort to escape the Rule 43 order.
Therefore, if faced with a Rule 43 application, it is important to consider the response carefully to mitigate the possibility of an adverse order being granted. An interim order is often unpredictable in its application and can wind up being unfair to one or both parties.
How interim maintenance impacts on subsequent negotiations
It can sometimes take a very long time for an opposed divorce to come to trial, for a variety of reasons. The delay may be due to the resources available to the court; the offices of the Family Advocate are often over-stretched and the number of divorce cases being heard by the High Court is on the increase. But the litigants themselves, i.e. one or other of the divorcing couple, may find their interests served by prolonging the time it takes to conclude the divorce; they may wish to uphold an inequitable status quo, either with regard to finances or parental access to minor children. A Rule 43 application is designed to address inequity but can in fact exacerbate it; and may in practice be the only contested hearing of the divorce, particularly as one or both parties realise the cost of taking litigation to trial.
This places a disproportionate importance on the interim maintenance order and it may be used – rightly or wrongly – to establish a precedent. A Rule 43 order, although intended to be only temporary, will cast a shadow over any negotiations subsequently conducted between the parties. Therefore the fairness of the eventual settlement may be influenced by the terms of the interim maintenance order.
Interim maintenance: Start as you mean to go on
Furthermore, if the case cannot be settled, the beneficiary of a Rule 43 application in the High Court (or a rule 58 in the Magistrates’ Court) could be at an advantage, as the order may be relied upon by the court in the divorce trial and effectively carried through to the settlement. The risk is that a “reverse onus” may rest with the other party to prove the error of the order.
Rule 43 orders cannot be appealed
The whole point of an interim order is to provide an immediate, interim facility to prevent potential financial hardship or to ensure custodial arrangements are suitable and children are not placed at risk, while waiting for a divorce to be finalised. For this reason interim orders cannot be appealed, as the appeal process could leave a family in a vulnerable situation for a lengthy period of time, while the appeal is resolved.
This prohibition against appeal was recently challenged first in the Supreme Court of Appeal, and when it was rejected at that level was taken to the Constitutional Court. The Con Court upheld the Supreme Court ruling. The challenge was based on the premise that the inability to appeal an interim order is unconstitutional, on the grounds that it violates the best interests of the child principle and the right to equality and access to courts.
However, the court ruled that the purpose of Rule 43 – to “provide a speedy and inexpensive remedy, primarily for the benefit of women and children” – is too important to be compromised. The right of appeal would negate the whole point of Rule 43. Furthermore, access to court is not denied, as anyone can approach the court for a variation in a Rule 43 order if circumstances change materially. Furthermore, if any order appears to be against the best interests of the child, it can be addressed on a case-by-case basis.
There were hints in this case that the constitutionality of Rule 43 itself may be open to challenge in the future, but for now, the prohibition against appeal stands. Read more about the case here.
Modern relationships are complex
In the not-so-distant past, it was common for the man to be the breadwinner and the woman to be the homemaker, particularly where there were children. Now it is normal for both spouses to be working, but there may be significant differences in income. This may lead to one party having the means to afford “luxurious litigation” while the other must make do with a more frugal legal representation.
It is also not unusual for the woman to be the main earner or for both spouses to be of the same sex. This introduces new complexity into the unravelling of a marriage and may find either party making a Rule 43 application for a range of reasons, including the cost of litigation. Furthermore, the financial affairs of one or the other may be intertwined with family trusts or businesses in South Africa or offshore in which they are beneficiaries.
Therefore interim maintenance, or any other terms of a Rule 43 order, must be carefully considered to avoid either party suffering a severe disadvantage, which may haunt them long after the divorce is finalised.
Children and Rule 43/Rule 58
Financial considerations are not the only motives for making a Rule 43 application. An interim order can be used to safeguard access to minor children until the divorce proceedings are concluded. The rights of children in any parental dispute have always been uppermost in the eyes of the courts, which have a role to play as upper guardian; but the Children’s Act 38 of 2005, incorporating Section 28 of the Constitution, reinforces these powers.
A Rule 43 order impacts on the relationships of the family unit. It influences parental care and contact arrangements and may result in one parent having greater control over the child’s upbringing, regardless of the views of the other parent. The rule 43 order also impacts on the level of support provided to a child, affecting not only quality of education provided but also the child’s general quality of life and access to opportunities. Therefore both parties must be frank about the financial resources available to enable the children to attain their full potential. Where both parents are income earners, a Rule 43 order in respect of child support imposes financial obligations on each of them. An unintended consequence is that the financial security and long-term wellbeing of one party may be compromised to the unfair benefit of the other.
Rule 43 – no ordinary interim order
A Rule 43 order is not the same as interim orders in commercial or other fields. Emotions are volatile in any divorce scenario and the stakes, whether financial or otherwise, are high. An interim order as per Rule 43 is not a holding position. A rule 43 order concerning children impacts fundamentally on their rights; and where spousal maintenance is concerned other rights may also be involved. It is crucial to ensure the position of either party is not impaired by an injudicious and ill-advised interim order.
If you are in need of a Rule 43 order for interim maintenance or access to your children, or if you feel you have been treated unfairly by the Rule 43 order mandated by your spouse, SD Law can help. Call Simon on 087 550 2740 or contact us and we will look at your case in detail and advise you on the best way forward – to protect the interests of all parties.