Divorce – R43 application (De Rebus)

Against the backdrop of acrimonious divorce proceedings, the court had to decide on an R43 application brought by the applicant in HSH v MH [2023] 1 All SA 413 (GJ). The interests of the parties’ three children and the applicant’s need for interim maintenance were being considered.

The high level of parental conflict heightened the need to protect the children, particularly as the conflict had resulted in various behavioral problems. Section 6(4) of the Children’s Act 38 of 2005 provides that in any matter concerning a child, an approach which is conducive to conciliation should be followed. Delay in any decision to be taken must be avoided as far as possible. The court appointed a social worker to deal with the high level of conflict between the parties and ordered that the children’s primary residence be with the applicant.

In deciding on interim maintenance, the court took note of the disparate financial means of the parties, with the applicant clearly unable to live or litigate at the same level as the respondent. Applicant’s entitlement to maintenance had to be assessed having regard to the standard of living enjoyed by the parties during the marriage. The monthly amount of R 104 000 claimed was reasonable in the circumstances.

The main aspect addressed was the request for a contribution to legal costs. Rule 43 of the Uniform Rules of Court provides an interim remedy to assist an applicant for a limited period before a divorce is finalized, in respect of, inter alia, a contribution to legal costs. Rule 43 ensures that neither party is prejudiced during the divorce proceedings by a lack of resources to maintain a reasonable standard of living, or to pursue their case in the main action.

It has been established in case law that there is no reason why an applicant may not be entitled to all of her costs, so that the parties are able to place their case before the court on an equal footing. In circumstances where one party causes the other to bear unnecessary costs, entitlement to full costs would be negatively impacted. The respondent was ordered to pay an amount of R 830 000 as a contribution towards applicant’s legal costs within 10 days of the order.