Concourt says no to interim order appeals for payment of maintenance
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This applies mostly to cases where an estranged husband pays maintenance to his wife and children pending the final financial arrangements in a divorce settlement which is then made an order of court.
In a case before the court that led to the order, a wealthy man appealed because he was aggrieved that he had to pay his estranged wife R40 000 a month maintenance while she had moved in with another man and left their three children with him to care for.
The husband, identified as Mr S, said he was prepared to pay Mrs S R12 000 a month until their final divorce came through, but no more.
Mrs S was used to a high standard of living while she was married and was not willing to give it up.
She said she received R64000 a month from her husband while they were still married, excluding the household expenses. She said she often spent R10000 to R12 000 a month at Woolworths alone.
The court, ordered the husband to pay her the R40000 a month for now.
The problem the husband faced was that this type of application, known in law as a Rule 43 application, is not appealable, as it is only an interim measure. He said it was not only unfair on him, but also on his children as they would suffer as he could not spend more on taking care of them.
Ten judges of the Constitutional Court, however, unanimously turned down the appeal. They said one of the solutions to the problem of interim arrangements was that the courts should finalise divorce cases as soon as possible.
In their opening remarks, they said “It is an inescapable fact of modern life that marriage often ends in divorce.” Statistics were cited which showed that in 2016 25326 divorce orders were granted by South African courts. Of these, 55% involved children under the age of 18.
In most divorce cases one of the parties - usually the wife - applies to the court for a Rule 43 application regarding interim relief pending the divorce.
In this regard the judges said: “Applicants in Rule 43 applications are almost invariably women, who, as in most countries, occupy the lowest economic rung and are generally in a less favourable financial position than their husbands.”
“Black women in South Africa historically have been oppressed by both race and gender. The inferior economic position of women is a stark reality. The gender imbalance in homes and society in general remains a challenge both for society at large and our courts.”
The judges said it was primarily left to women to care for their children during a break-up and pending divorce. The Rule 43 applications were mainly there to assist them until a court finally made a divorce order, coupled with a maintenance and financial order.
The court, however, ordered that R40000 a month was sufficient - even though Mrs S’s new lover took care of expenses at their new home.
Mr S said this order affected the Constitutional rights of his children - whom he is caring for - as he had to see to their best interests.
The Centre for Child Law, who entered the proceedings as a friend of the court, agreed with the father and said interim orders also affect other non-financial issues - such as contact with the children by the other party, while the divorce proceedings were still pending. The issue is that once such an interim order is made by a court, it remains in place pending the divorce.
But the judges said appeal proceedings would delay matters and have enormous ramifications for an impecunious spouse.