FINANCIAL DISCLOSURE IN RULE 43 APPLICATIONS

What is a Rule 43 application?

A rule 43 application is a High Court application for interim relief in matrimonial matters. Rule 43 was created to offer an affordable process for obtaining the same interim relief in matrimonial actions as had been previously available under the common law regarding maintenance and costs.

When a divorce is taking a long time to finalize or when one of the spouses is a homemaker with no income, the law offers a procedure that can be used to help spouses during a divorce to provide for the interim period until the divorce is finalized. Rule 43 of the High Court and rule 58 of the Magistrate’s court give an interim measure to help an applicant swiftly and with little legal costs.

The interim relief the applicant seeks must be related to one of the following categories:

• Maintenance for the wife and/or children pending the outcoming of the divorce proceedings;

• A contribution towards the legal fees of your divorce;

• Interim care of any minor child;

• Interim contact with any minor child;

• 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;

• an order for delivery of a car, furniture, etc.

Rule 43/58 deals with many of the difficulties that will eventually be dealt with in the final divorce action but is a temporary remedy. An acrimonious divorce can take many years to finalize, and spouses need to be safeguarded during the divorce process. A divorcing wife who has no income is entitled to a contribution to her legal costs to ensure she has an equal opportunity to defend her case.

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

• before issue of the summons;

• simultaneously with the issuing of the summons; or

• after a notice of intention to defend is received.

Problems with Rule 43 applications

The rule is viewed to be unpredictable in application. The cause is the length of time it might take for an opposed divorce to go to trial therefore compelling the need for interim parenting arrangements, maintenance, and the like under rule 43. It is also the further realization by the one party or both, of the unaffordability of seeing the litigation through to a costly fully fledged trial.

Delay may be due in part to the resources available to a court, such as over-burdened offices of the Family Advocate. It might additionally arise because of the increasing number of divorce cases coming to the High Court or where the other party has sufficiently deep pockets to out-litigate the other.

The issues before the High Court have also come to be more complicated. Gone are the days of the norm being a single bread winner or that a child must stay with the mother unless of course it can be shown that she is unfit. Not only are both spouses probably working, but the structuring of the financial affairs of one or the other may be complicated and intertwined with family trusts or businesses here or offshore in which they tend to be de facto beneficiaries.

The presiding judge has a difficult task. It is usually confusing to establish whose version is to be believed; with each party producing a convincing case on paper. A party may even provide a plausible explanation to account for extra expenditure over disclosed net remuneration on the ground that property was sold. Generally, there is no way of evaluating these allegations if regard is given to the limits inherent in getting two brief sets of affidavits as practice requires under the rule.

There may also be inequality of treatment in regard to interim maintenance applications simply because there will be cases where discovery has already been made by both parties (e.g., where the trial was postponed) and no issue has been taken with their sufficiency; in such a case there will therefore be documentary evidence that makes the task of the parties much easier in presenting brief affidavits or refer to external documents contained in court bundles.

A court hearing a rule 43 application is usually expected to deal with the following series of questions: What are the historic expenditure figures and is there any reason to decrease or increase them (e.g.; if the income source has changed or become depleted and, where applicable, what account if any should be taken of providing for the additional cost of accommodation for the children)? Must there be an annual adjustment for inflation? As soon as the expenditure figure is established what would be its equitable apportionment between the parties having regard to their respective net worth, their income or other financial benefits enjoyed, their own reasonable expenditure, and any other relevant factors arising in the case that should be considered.

Furthermore, payments may be deferred or, as with assets and other benefits, may be hidden through trusts, nominees, family operated businesses, share options, corporate entities or other businesses or employment structures in relationships that would generally involve connected persons.

While a court may on occasion have enough to pierce the structure employed it is rarely able to determine the actual quantity of the benefits received. Where the parties are wage earners employed by a complete outsider who, to adopt a term from company law, is not a related person, then a court will have confidence in accepting pay slips, IRP5 forms and tax returns.

Legal entities and trusts are popular means where income and assets may be distributed in forms other than salary or cash. They also enable income to be deferred via retention in loan accounts or being converted into investments or equity.

Without the requirement of a proper disclosure, and possibly the utilization of oral evidence in appropriate cases, rule 43 proceedings favour the dishonest party or the one who takes advantage of a practice that does not insist on up-front disclosure of the true state of financial affairs. Logically there is also no risk of contempt of court proceedings or of a criminal charge for fraudulent non-disclosure.

A judges' personal or relative viewpoint of a reasonable expense may impact the determination of that side of the equation, whereas the issue should be concerned with the parties’ reasonable expenditure having regard to their living standards and their accessibility to income.

While the rights of children have continuously been respected and the courts have diligently exercised their common law powers and duties as upper guardian, the recognition of the rights of children being of paramount consideration in all matters affecting them is more emphasized. This is because of s 28 of the Constitution and its adoption into the Children's Act 38 of 2005.

A rule 43 order, although temporary in nature, can appear large in the negotiations that are inevitably conducted between the parties. As a result, it will affect whether an eventual settlement achieves the desired result of fairness to both parties. On the other hand, if the case cannot be settled then the “successful” party to a rule 43 application (or a rule 58 in the Magistrates’ Court) is placed at an advantage as the order will be relied upon before the trial court with the risk that a reversed burden of proof is cast on the other party to show why the order was wrong.

Financial disclosure

In TS v TS (28917/2016) [2017] ZAGPJHC 244; 2018 (3) SA 572 (GJ), Spilg J, emphasized the importance of financial disclosure during Rule 43 proceedings. The necessity of disclosure in interim maintenance orders is not a unique process. In England it is commonly known as a Form E disclosure. This refers to the form that is completed in an application for a financial order inter alia in divorce proceedings before the High Court or the Family Courts in England and Wales. The Practice Directive imposes on the parties a duty to make a full, frank, and clear disclosure to the court of all financial and other relevant circumstances. Where a party is deliberately untruthful a case of statutory fraud may be brought. The offending party would also be subject to contempt of court proceedings.

The financial elements of a rule 43 application are aimed at offering child maintenance, spousal maintenance or a contribution towards legal costs already incurred or to be incurred. The relative financial commitments of each spouse have nothing to do with the patrimonial consequences of a divorce (division of the assets) however everything to do with the application of s 7(1) of the Divorce Act 70 of 1979[1] and, in respect of a contribution towards costs, by guaranteeing equal footing when it comes to litigation between them.

A court would be incapable of determining whether there has been a proper disclosure of available income and the party’s respective means to provide for maintenance or be able to litigate on a relative par without assessing the available source of funds that historically have been used to support the family prior to the parties’ separation and whether that has changed to any marked degree bearing in mind that the households have been split.

Without a proper up-front disclosure procedure, judicial officers may be compelled to elevate an anomaly in one party’s papers to an overall adverse credibility finding which impacts on the maintenance ordered to be paid, whereas it might be that the other party was more proficient at juggling income and expenditure figures. In cases where it is apparent that both parties have exaggerated expenses or minimized income there is the temptation to simply split the differences. In either case a respondent may also enjoy an unintended advantage because the applicant does not have an automatic right of reply.

A standard financial disclosure form has recently been introduced in South African Law and it is recommended that this form is filed with any rule 43 application. On 12 June 2019, the Gauteng Local Division of the High Court in Johannesburg (GJ) in the E v E and related matters [2019] 3 All SA 519 (GJ) case, delivered a Full Bench judgment relating to rule 43 applications. This judgment brought about significant changes in rule 43 applications, and divorces in general.

Gauteng Division Judge President Mlambo directed that, about this financial disclosure form, at paras 56 – 57: ‘The benefit of making it mandatory to file a financial disclosure form is that firstly, the parties will not need to file lengthy affidavits to make or defend their case. Secondly, parties will be forced to be transparent with each other and with the Court at the inception of the divorce action. … Financial disclosure will place the Court hearing the application in a better position to decide the matter in a manner that does justice to the parties and takes care of the best interests of the minor children.’

On receipt of the rule 43(2) and 43(3) affidavits, the judge allocated to hear the matter shall, if he or she deems it appropriate, issue a directive to the parties in terms of rule 43(5) calling on the Applicant and/or the respondent to file (a) supplementary affidavit(s) making a full and frank disclosure of their financial and other relevant circumstances to the Court and to the other party.

The affidavits referred to above must be accompanied by a financial disclosure form, which must be filed seven days before the date of hearing. Affidavits filed in terms of rule 43(2) and (3) shall only contain material or averments relevant to the issues for consideration. It shall not be competent for a court to dismiss an application in terms of rule 43, only based on prolixity. If the Court finds that the papers filed by a party contain irrelevant material, the Court only has the power to strike off the irrelevant and inadmissible material from the affidavit in question and make an appropriate cost order.

If a party lies under oath, they can be prosecuted for perjury. Although the judgment is binding only in the high courts, magistrates’ courts, and maintenance courts in Gauteng, it will have strong persuasive authority in any other courts should anybody choose to rely on it.