Urgent Relief Applications

During contested divorce proceedings, it often happens that the party who is not the main breadwinner is left with very little income, or without any income at all, and as a result finds themselves in a predicament in meeting their, and in some instances, their minor children’s financial needs. In these circumstances, he/she may apply for an interim order in terms of Rule 43 (high Court) or Rule 58 (Regional Court).

The Rule 43 or Rule 58 Application provides for the following, which can be used to obtain an interim court order pending contested divorce litigation:

1. Interim maintenance for the minor children and/or one of the parties until the divorce matter is finalised;
2. A contribution towards legal costs of one of the parties to the divorce;
3. Interim care and contact with the minor children;
4. Interim custody of minor children;
5. Enforcing certain payments, such as for the bond on the matrimonial home, vehicles, school fees, medical aid premiums and even deposits on new accommodation and relocation costs; and/or
6. An order for delivery of a car, furniture, etc.

Depending on the circumstances, such an application can be brought:

1. before issue of the summons;
2. simultaneously with the issuing of the summons; or
3. after a notice of intention to defend is received.

Procedure to obtain interim relief:

The spouse seeking an interim relief Order (the Applicant), will complete an affidavit (called the Founding Affidavit) which will then be lodged at Court and served on the other party together with the Application. The other spouse, being the Respondent, will then be granted an opportunity to respond to the Applicant’s affidavit. The Applicant’s affidavit must provide a very brief, succinct statement of the reasons why he/she is asking for the relief claimed and that the respondent must supply an equally succinct reply. As soon as the Respondent has served and filed his/her response to the Applicant’s affidavit, the matter is set down for argument.

At the hearing, the application is argued based on the documentation before the court and no oral evidence is given, whereafter the judge will make an order which he/she deems appropriate under the circumstances.