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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2013-07-04
I have in previous articles talked about Rule 43 applications. It's a mechanism which allows any person who is going through a divorce to ask the court to provide temporary relief, [until the date when the court makes a final ruling on all the matrimonial matters surrounding the divorce], on issues such as maintenance, care and contact of minor children as well as contribution of legal costs. One of the key features of a Rule 43 application is that it is not appealable. That means if you are not satisfied with the outcome, you cannot appeal the decision of the court.

Once the court makes its ruling, it becomes an Order of the Court and both husband and wife have to adhere to this ruling, or they will be in contempt of court and could face imprisonment. In terms of Rule 43(6) of the Uniform Rules of Court, the court is however allowed to vary its decision if there was a material change in the circumstances of either spouse or a child.

These issues came before Judge Davies in the Western Cape High Court recently. A wife brought Rule 43 application in December 2011 against her husband and was awarded interim maintenance. She later claimed that her husband owed her approximately R290 000.00 for arrear maintenance.

In July 2012 the husband brought an application to vary the court order. In his papers he said that he fully complied with the court order from December 2011 until July 2012, but he was now unable to comply due to a material change in his circumstances.

In May 2013 the wife brought an urgent application to have her husband's estate sequestrated. She stated that her husband committed an act of insolvency when he said in his court papers that could not pay the monies which he was initially ordered by the court to do so.

The husband argued that the claim did not qualify as a "liquidated claim" in terms of the Insolvency Act. He said that once he was able to prove his changed circumstances, he would not be liable to pay the amounts as per the December 2011 court order. The court was unimpressed by the woman's claim for sequestration and dismissed her application with costs on a higher scale (attorney and client) scale.

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670.