Divorce is rarely a seamless affair. It can be long, emotionally taxing, and fraught with legal complexities, especially when one party is financially dependent on the other. In South Africa, the judicial system recognises the challenges faced by lower-earning spouses, often homemakers and those with primary care of minor children. Rule 43 of the High Court and Rule 58 of the Magistrates’ Court can be legal tools specifically designed to offer interim relief during divorce proceedings. 

This article will unpack the what,why, and how of Rule 43/58 applications—what they cover, who can apply, how the process unfolds, and under what conditions an interim order can be changed or varied.

What is a Rule 43/58 Application? 

Simply put, a Rule 43 (High Court) or Rule 58 (Regional Court) application is a legal mechanism designed to provide temporary relief to one party in a divorce while the main action is still pending. 

Often referred to as interim relief, these applications aim to stabilise the financial and custodial situation of the parties until the final divorce decree is granted, a determination that can take months and, sometimes, years to reach. 

What Can Be Claimed? 

Under Rule 43 or 58, an applicant can request interim orders for one or more of the following: 

• Maintenance for the spouse and/or children; 
• Interim care and contact with the child(ren); 
• Payment of living expenses, such as bond repayments, school fees, medical aid, or relocation costs; 
• A contribution to legal costs; 
• Delivery of property, such as vehicles or furniture. 

These provisions mirror what may be dealt with in the final divorce settlement, but they offer temporary protection and support while the outcome of proceedings is pending. 

Why Rule 43/58 Matters  

Divorces are not always resolved quickly. If one spouse stops paying for household expenses or uses finances to exert control, the other spouse, especially if unemployed, can find themselves in a crisis. Rule 43/58 is a protective legal shield, especially for caregivers and financially vulnerable spouses. 

South Africa’s constitutional commitment to equality means that both parties in a divorce must have equal opportunity to present and defend their cases. So, if one spouse holds the financial power, Rule 43/58 ensures that the other can access funds for legal representation. 

Who Can Apply? 

Any spouse involved in a divorce, whether they are the financially dependent party or the parent with primary care of the children, can apply for interim relief, as long as they can show: 

• They do not have the means to cover their reasonable expenses; 
• The respondent (the other spouse) has the financial ability to contribute. 

The court considers the standard of living during the marriage when evaluating the claim and will use the test of what is reasonable in the context of the marriage.

What Must Be Proven in a Legal Costs Claim? 

When claiming a contribution toward legal costs, the courts follow these principles: 

• The applicant must be in a position to adequately present their case, not necessarily match the respondent’s spending rand for rand. 
• The request must reflect what is needed, not what is wanted. 
• The court looks at the scale on which both parties are litigating. 
• The claim may include reasonable attorney’s fees, not just disbursements. 
• The applicant is only entitled to a contribution, not the full amount. Further applications may be made during the trial. 

How the Rule 43/58 Process Works 

The application process is designed to be fast, efficient, and inexpensive: 

• The applicant files a notice and a founding affidavit with the court, briefly stating their request and reasons. 
• The respondent is given 10 days to reply with an opposing affidavit. 
• No oral evidence is presented: the judge or magistrate rules based solely on the papers. 
• The court’s order is then enforceable immediately, providing quick relief. 

What If Circumstances Change? Rule 43(6) to the Rescue 

Life is unpredictable. A job loss, unexpected expenses, or a change in the children’s needs may make an existing interim order unworkable. That’s when Rule 43(6) becomes relevant. 

A party may approach the court for a variation of the original order in the following circumstances: 

• There has been a material change in circumstances; or 
• New facts have come to light that were not available during the initial application. 

 In S v S [2019] ZACC 22, the Constitutional Court reiterated that Rule 43 orders are interim and non-appealable to avoid endless litigation. However, material changes are a valid ground for variation. 

Best Practices for a Successful Application 

• Be honest and specific in outlining your expenses and income. 
• Keep your affidavits focused and brief. 
• Act promptly: don’t let arrears build up before applying. 
• Avoid luxury claims: courts look at what’s necessary, not extravagant. 
• Back up your request with documentation such as payslips, budgets and school invoices. 

Conclusion 

Rule 43 and Rule 58 applications exist to level the playing field during one of the most turbulent times in a person’s life. Whether it’s to secure financial stability, legal representation, or arrangements for your children, these interim measures provide structure and relief amid the uncertainty of divorce litigation. 

By understanding the process, and the legal limits, of these applications, spouses can better protect themselves and their families until the final divorce decree is issued. If you’re navigating a divorce and facing financial insecurity, talk to a family law attorney and explore whether Rule 43 or Rule 58 could be the bridge you need to the other side. 

Written by Kerri Stewart, Attorney, SchoemanLaw Inc