Many people are financially reliant on their spouses - particularly women who are homemakers and are raising children. All too often, persons in these circumstances are afraid to institute divorce action against their spouse as they are dependent on them and cannot afford to leave the marital home or get divorced.
It is worthwhile to note that there are court processes to assist with interim (temporary) relief while the divorce is still being litigated and this interim application is specifically applicable to divorce matters. It offers you relief expeditiously and affordably.
If the application is brought prior to instituting divorce action, it must be stated under oath in the application that divorce action will be instituted. The application known as a Rule 43 (High court) or Rule 58 (Regional court) application can be launched for interim maintenance pending the divorce, against the other spouse. This application is usually only necessary if a spouse withdraws from maintaining the other spouse financially or threatens to during the divorce process.
It is important to take note that, before making an order to interim maintenance, the court will consider and weigh the reasonable need of the applicant against the reasonable means to provide by the respondent. Therefore the applicant will have to prove his/her reasonable needs and furthermore, prove that the respondent has the reasonable means to provide such financial assistance.
In the application, the applicant can claim one or more of the following:
Interim care or contact with a child;
Interim maintenance for yourself and a child or children;
Interim rental or contribution towards alternative residence and a contribution towards furnishings;
An interim contribution towards the legal costs of the pending divorce action
The applicant claiming interim maintenance will bring an application with a founding affidavit stating the necessary material facts. The affidavit should be supported with a schedule of expenses to justify the interim maintenance required to live and if there are children, maintenance for each child can also be claimed and the amounts should be justified in accordance with the necessary proof thereof.
As this application is seen as a swift process for interim relief, there is no opportunity for the applicant to reply to the respondent, should the respondent defend the application and it is therefore vital to bring an application as complete as possible with supporting documentary evidence to justify and prove the claims are reasonable and that the respondent has the reasonable means to meet the interim maintenance obligations. Although this type of application must be concise and bringing a voluminous application may attract an objection, it is vitally important to place before the court as much information as is reasonably necessary for the court to come to a favourable decision.
There is a duty on applicants in Rule 43 and Rule 58 applications to act with the utmost good faith and furthermore, fully disclose all material information with respect to their financial affairs. Any false disclosures or a failure to disclose material information may result in the court refusing to grant relief. It is important to note that should the court grant the interim order; it is only temporary and may not reflect what the final divorce order may entail. Although the interim order operates until the date of divorce it is enforceable and failure to comply with the order may result in contempt of court and could have severe consequences on the party failing to comply.
If there is a substantial change in circumstances of either party for example the respondent loses their job and no longer earns an income, they can apply to have the interim maintenance order varied or amended accordingly and again a full disclosure of the material facts is required with the necessary documentary evidence in support thereof.
The purpose of the Rule 43 or Rule 58 application to obtain an interim maintenance order pending divorce, is to preserve the integrity of the duty to support a spouse during the subsistence of the marriage and since the parties remain married to each other while in the process of divorce litigation, the duty to support the spouse remains intact and the courts protect this right by granting relief when a proper case has been made out.
If you need to get a divorce but are financially reliant on your spouse, contact us to discuss your options. There are also other options available to you to finance your divorce. Contact us at reception@mayberyinc.co.za or (012) 004 1296.