I was denied spousal maintenance under Rule 43. I felt like the judge's decision was influenced and unjust. What can I do?

The long answer

Let’s look at what a Rule 43 order is and how it works:

Family and Divorce law in South Africa explains that it is an interim relief order until the divorce is finalised: “…an applicant must show that he/she has insufficient means and that the respondent can afford to meet the amounts being sought.”

Van Deventer & Van Deventer Incorporated says that when a marriage has not yet come to an end, it is the legal duty of the more financially stable spouse (respondent) to support the other (applicant) during the divorce proceedings.

The court mainly looks at two things:

• The applicant spouse’s needs (and the children if relevant); and

• The respondent spouse’s ability to pay. 

Family and Divorce law in South Africa explains that the spouse who is seeking an interim relief order (the applicant) will file a notice and affidavit (referred to as a founding affidavit) with the court, setting out the facts relating to the divorce and why the spouse thinks that he/she is entitled to relief from the other spouse (the respondent).

The applicant’s affidavit must set out their financial circumstances, the financial needs of the children and any other relevant information. The affidavit will be served on the other party (the respondent) who must then file a replying affidavit.

Abrahams & Gross say that interim spousal maintenance is usually granted in cases where there is a significant difference between the financial capabilities of the spouses. 

Abrahams & Gross also say that unlike full divorce proceedings, the Rule 43 hearing is brief and is limited to the written affidavits and documentation provided. Since the court's time is limited and the proceedings are meant to be brief, excluding detailed arguments or spoken evidence, it often can't fully examine each party's financial situation. As a result, people are often unhappy with the temporary order that's issued.

As far as the judge saying that he put the rights of your children before yours, Family and Divorce law in South Africa says that the recognition of the rights of children is of paramount consideration in all matters affecting them, due to Section 28 of the Constitution being adopted in the Children's Act 38 of 2005. A child is, however, defined as a person under 18, and only your grandchild is under that age. 

But they also point out that it is often confusing to ascertain whose version is to be believed, with each party producing a convincing case on paper. They say that generally there is no way of evaluating which affidavit is true in a Rule 43 hearing, because a hearing is necessarily brief, and the judge must come to a decision based on two brief sets of affidavits as practice requires. They conclude that “…a presiding judge has an unenviable task.”

After the court hearing, the judge will issue an interim order, which stays in effect until the final divorce hearing. But Abrahams & Gross note that the interim order may be revisited or varied, if the circumstances of the parties change significantly before the divorce is finalised.

A Rule 43 order cannot be appealed: Schoeman Law Inc gave the example of a husband who tried to appeal an order and took it right to the Constitutional Court. The court found that it could not be appealed but a litigant may approach the court to vary the order if there is a change in “material circumstances” that may justify it. 

As a Rule 43 order only holds until the divorce, the issues that you have described must still be negotiated in court when the divorce is finalised.

Perhaps you should use this time to consult legal opinion on your options. You could approach Legal Aid which is a mean-tested organisation that must assist people who can’t afford a lawyer. These are their contact details:

• Legal Aid

Tel: 0800 110 110 (Monday to Friday 7am to 7pm) 

Please Call Me: 079 835 7179  

Email: communications2@legal-aid.co.za

You did not explain why you could not get an old age pension. A monthly payment of R245 from a ceded policy is unlikely to prevent you from getting an old age grant: if you earn less than R8,070 a month, you should qualify for an old age pension. You could also investigate whether your medical conditions would qualify you for a disability grant. You would need to apply to SASSA and their doctors would examine you and come to a decision according to their procedures. 

Wishing you the best,
Athalie