If you are getting divorced and have to sort out maintenance and contact with your child before the divorce order goes through, you can obtain an interim maintenance and contact-of-minor-children order, Shaista Singh, a junior associate in the litigation department of Garlicke & Bousfield, says.
Singh says the orders can be obtained under rule 43 of the Supreme Court Act and rule 58 of the Magistrates Court Act.
They can be used to determine the primary or main residence of a minor child, interim care for or contact with a minor child, maintenance for a spouse or child, to force a spouse to pay school fees, medical scheme contributions or mortgage bond payments on the matrimonial home, or an interim contribution towards the legal costs of the divorce, Singh says.
An interim order will be in place only until the final divorce order is granted, she says.
Depending on the circumstances, an application can be instituted in a magistrate’s court before summons is issued, or simultaneously with the issuing of the summons, or after a notice of intention to defend is received.
Singh says the courts will ensure that the application is heard quickly to avoid the spouse who is seeking relief being prejudiced.
The court will determine whether you are entitled to interim relief by taking into account your and your spouse’s standard of living, and you will have to show that you have insufficient means to cover the maintenance required or the costs of the divorce action, whereas your spouse can afford to pay.
When it comes to the legal costs of the divorce, the court will consider awarding an interim contribution to place you in a position to present your case adequately. You are not entitled to all your costs, but merely a “contribution” towards these costs, Singh says.
In terms of the Acts, you need to provide the court with a brief statement made on oath to explain why you are asking for the interim relief and a schedule of your and your spouse’s living expenses.
Your spouse will have an opportunity to give a brief reply and can challenge your case, including the amounts you are claiming, Singh says.
Neither you nor your spouse will be able to give oral evidence, because the application will be argued only papers.
The court is expected to make a decision that is fair and reasonable given your and your spouse’s circumstances. The decision of the presiding judge or magistrate is final and cannot be appealed.
The latest edition of Personal Finance magazine (third quarter 2016) has an in-depth feature on how to address the financial aspects of divorce. Personal Finance magazine is available from retailers for R32.95, or subscribe by phoning 021 530 3253 or 0860 100 203, or email [email protected] or visit magsathome.co.za