Rule 43 Application – Maintenance Pendente Lite – High Court – Cape Town

Whilst you are in the process of divorcing your spouse, you may require the Western Cape High Court to assist you with regard to maintenance, or contact with your child. You may want the Court to Order t your spouse pays a portion of your legal fees, as well. This can all be done while the divorce is still pending. In the High Court, the court procedure to follow is outlined in its Uniform Rule 43.  That is where the term “Rule 43 Applications” come from.

Family Law Questions and Answers

Should you not find what you are looking for, feel free to post your questions on our blog, by clicking on the following links:

Divorces – Questions and Answers

Child Custody – Questions and Answers

Child Maintenance – Question and Answers

Domestic Violence – Questions and Answers

You are welcome to call us on 021 424 3487 / 0870735800

For other legal and business services, feel free to visit:

Business SA or Private Legal.

Below was provide you with the entire rule 43, as well with an example of the Notice when making use of the rule.

The entire rule 43 is as follows:

43 Matrimonial Matters (1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters: (a) Maintenance pendente lite; (b) a contribution towards the cost s of a pending matrimonial action; (c) interim custody of any child; (d) interim access to any child. (2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent as near as may be in accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the applicant or his attorney and shall give an address for service within eight kilometres of the office of the registrar, and shall be served by the sheriff. (3) The respondent shall within ten days after receiving the statement deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred. (4) As soon as possible thereafter the registrar shall bring the matter before the court for summary hearing, on ten days’ notice to the parties, unless the respondent is in default. (5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order  as it thinks fit to ensure a just and expeditious decision. (6) The court may, on the same procedure, vary its decision in the event of a  material change taking place in the circumstances of either party or a child, or the  contribution towards costs proving inadequate.

How does it work

In short, you or your attorney would file an Affidavit with a Notice outlining in concise form, what you require. Then the other party would respond. The documents should be simple and straight to the point. The idea is to provide enough information for the court to make a quick decision. Now let’s look at an example of a rule 43 Notice used in the High Court.

An Example of a Rule 43 Notice

Below is an example of a Rule 43 Notice dealing with contact rights.

IN   THE   HIGH   COURT OF SOUTH   AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN) CASE NO: In the matter between:   JOHN SMITH                                Applicant     and     JANE SMITH                               Respondent    

NOTICE OF APPLICATION IN TERMS OF RULE 43

  TO THE ABOVE MENTIONED RESPONDENT MADAM   TAKE NOTICE that the abovementioned Applicant claims from the Respondent the following, pendente lite:
  1. The minor child shall reside primarily with the Applicant who shall be her primary caregiver; and
  2. The Respondent shall have reasonable contact with the minor child as follows:
    • Every alternative weekend, commencing from the Friday until the Sunday. The collecting and drop-off times shall be agreed to by the Parties in advance, which may vary from time to time;
    • Equal sharing of long and short school holidays, in that the minor child shall reside one half with the Applicant and the other with the Respondent which shall alternate each year;
    • The Applicant and/or the Respondent, as the case may be, shall further have contact with the minor child on the following days for 3 (three) hours notwithstanding in whose care the minor child is in on those days:
      • Christmas Day;
      • The minor child’s birthday;
      • Father’s day and Mother’s Day; and
      • The Parties’ birthday.
  1. The Parties shall have telephonic contact with the minor child on a regular basis whilst the minor child is in the other’s care;
  2. Notwithstanding the above, the Parties shall have reasonable contact with the minor child at all times, provided that any additional contact shall be arranged telephonically and shall only take place by prior arrangement and consensus between the Parties; and
  3. The Parties shall respect each other’s privacy and shall not enter each other’s homes at any time without prior invitation, whether for the purpose of fetching or returning the minor child or any other reason whatsoever.
  4. JOINT DECISION MAKING
    • The Parties shall make joint decisions about the following aspects of the minor child’s life:
      • Major decisions about the minor child’s schooling and tertiary education;
      • Major decisions about the minor child’s physical care, mental health care and medical care;
      • Major decisions about the minor child’s religious and spiritual upbringing;
      • Decisions about the minor child’s residence both within and outside the Cape Peninsula;
      • Decisions which are likely to significantly change the minor child’s living conditions or to have an adverse effect on her well-being; and
      • Decisions which affect the minor child’s everyday care and daily routine shall be made by the party in whose care the minor child is in at the relevant time.
  1. Costs of this Application if opposed; and
  2. Further and/or alternative relief.
  TAKE NOTICE FURTHER that if you intend to defend this claim you must, within in 10 (ten) days, file a reply with the Registrar of this Honourable Court, Keerom Street, Cape Town, giving an address for service as referred to in rule 6(5)(b), and serve a copy on the Applicant’s attorneys.   If you do not do these things, you will automatically be barred from defending and judgment may be given against you as claimed. Your reply must indicate what allegations in the Applicant’s statement you admit or deny and must concisely set out your defence.   TAKE NOTICE FURTHER that the affidavit of JOHN SMITH (the Applicant) annexed hereto with confirmatory affidavits shall be used in support of this application.   DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2018.         ——————————————                                   ABC  Attorneys     _____________________ Per.:   TO:        THE REGISTRAR HIGH COURT CAPE TOWN     AND TO:  JANE SMITH (RESPONDENT) Working at: XX WESTERN CAPE c/o   AND TO: THE OFFICE OF THE FAMILY ADVOCATE  CAPE TOWN ______________________o0o____________________  

Do you need a lawyer or attorney?

It is always advisable to make use of a lawyer or an attorney when litigating in the High Court, or any court for that matter. However, sometimes the issue of costs comes into play. If however, you cannot afford the services of an attorney, we advise that you still proceed with the application.  
Posted on by Telelaw

Rule 43 Application – Maintenance Pendente Lite – High Court – Cape Town

Whilst you are in the process of divorcing your spouse, you may require the Western Cape High Court to assist you with regard to maintenance, or contact with your child. You may want the Court to Order t your spouse pays a portion of your legal fees, as well. This can all be done while the divorce is still pending. In the High Court, the court procedure to follow is outlined in its Uniform Rule 43.  That is where the term “Rule 43 Applications” come from.

Family Law Questions and Answers

Should you not find what you are looking for, feel free to post your questions on our blog, by clicking on the following links:

Divorces – Questions and Answers

Child Custody – Questions and Answers

Child Maintenance – Question and Answers

Domestic Violence – Questions and Answers

You are welcome to call us on 021 424 3487 / 0870735800

For other legal and business services, feel free to visit:

Business SA or Private Legal.

Below was provide you with the entire rule 43, as well with an example of the Notice when making use of the rule.

The entire rule 43 is as follows:

43 Matrimonial Matters
(1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:
(a) Maintenance pendente lite;
(b) a contribution towards the cost s of a pending matrimonial action;
(c) interim custody of any child;
(d) interim access to any child.
(2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed
and the grounds therefor, together with a notice to the respondent as near as may be in accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the applicant or his attorney and shall give an address for service within eight kilometres of the office of the registrar, and shall be served by the sheriff.
(3) The respondent shall within ten days after receiving the statement deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred.
(4) As soon as possible thereafter the registrar shall bring the matter before the court for summary hearing, on ten days’ notice to the parties, unless the respondent is in default.
(5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order  as it thinks fit to ensure a just and expeditious decision.
(6) The court may, on the same procedure, vary its decision in the event of a  material change taking place in the circumstances of either party or a child, or the  contribution towards costs proving inadequate.

How does it work

In short, you or your attorney would file an Affidavit with a Notice outlining in concise form, what you require. Then the other party would respond. The documents should be simple and straight to the point. The idea is to provide enough information for the court to make a quick decision. Now let’s look at an example of a rule 43 Notice used in the High Court.

An Example of a Rule 43 Notice

Below is an example of a Rule 43 Notice dealing with contact rights.

IN   THE   HIGH   COURT OF SOUTH   AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO:

In the matter between:

 

JOHN SMITH                                Applicant

 

 

and

 

 

JANE SMITH                               Respondent

 

 

NOTICE OF APPLICATION IN TERMS OF RULE 43

 

TO THE ABOVE MENTIONED RESPONDENT

MADAM

 

TAKE NOTICE that the abovementioned Applicant claims from the Respondent the following, pendente lite:

  1. The minor child shall reside primarily with the Applicant who shall be her primary caregiver; and
  2. The Respondent shall have reasonable contact with the minor child as follows:
    • Every alternative weekend, commencing from the Friday until the Sunday. The collecting and drop-off times shall be agreed to by the Parties in advance, which may vary from time to time;
    • Equal sharing of long and short school holidays, in that the minor child shall reside one half with the Applicant and the other with the Respondent which shall alternate each year;
    • The Applicant and/or the Respondent, as the case may be, shall further have contact with the minor child on the following days for 3 (three) hours notwithstanding in whose care the minor child is in on those days:
      • Christmas Day;
      • The minor child’s birthday;
      • Father’s day and Mother’s Day; and
      • The Parties’ birthday.
  1. The Parties shall have telephonic contact with the minor child on a regular basis whilst the minor child is in the other’s care;
  2. Notwithstanding the above, the Parties shall have reasonable contact with the minor child at all times, provided that any additional contact shall be arranged telephonically and shall only take place by prior arrangement and consensus between the Parties; and
  3. The Parties shall respect each other’s privacy and shall not enter each other’s homes at any time without prior invitation, whether for the purpose of fetching or returning the minor child or any other reason whatsoever.
  4. JOINT DECISION MAKING
    • The Parties shall make joint decisions about the following aspects of the minor child’s life:
      • Major decisions about the minor child’s schooling and tertiary education;
      • Major decisions about the minor child’s physical care, mental health care and medical care;
      • Major decisions about the minor child’s religious and spiritual upbringing;
      • Decisions about the minor child’s residence both within and outside the Cape Peninsula;
      • Decisions which are likely to significantly change the minor child’s living conditions or to have an adverse effect on her well-being; and
      • Decisions which affect the minor child’s everyday care and daily routine shall be made by the party in whose care the minor child is in at the relevant time.
  1. Costs of this Application if opposed; and
  2. Further and/or alternative relief.

 

TAKE NOTICE FURTHER that if you intend to defend this claim you must, within in 10 (ten) days, file a reply with the Registrar of this Honourable Court, Keerom Street, Cape Town, giving an address for service as referred to in rule 6(5)(b), and serve a copy on the Applicant’s attorneys.

 

If you do not do these things, you will automatically be barred from defending and judgment may be given against you as claimed. Your reply must indicate what allegations in the Applicant’s statement you admit or deny and must concisely set out your defence.

 

TAKE NOTICE FURTHER that the affidavit of JOHN SMITH (the Applicant) annexed hereto with confirmatory affidavits shall be used in support of this application.

 

DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2018.

 

     

——————————————                                   ABC  Attorneys

 

 

_____________________

Per.:

 

TO:        THE REGISTRAR

HIGH COURT

CAPE TOWN

 

 

AND TO:  JANE SMITH (RESPONDENT)

Working at:

XX

WESTERN CAPE

c/o

 

AND TO: THE OFFICE OF THE FAMILY ADVOCATE  CAPE TOWN

______________________o0o____________________

 

Do you need a lawyer or attorney?

It is always advisable to make use of a lawyer or an attorney when litigating in the High Court, or any court for that matter. However, sometimes the issue of costs comes into play. If however, you cannot afford the services of an attorney, we advise that you still proceed with the application.

 

Related Post

Relocation with my minor child to United States of America, Las Vegas (Consent and Refusal) – Advocate Muhammad Abduroaf

The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you.

Relocation of your minor child to Las Vegas, United States of America

If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages nine or ten) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Nelspruit or Mahikeng, South Africa, and you want to relocate to Las Vegas, United States, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation.

What about Passport Consent to travel or relocate to Las Vegas, United States?

The same applies when it comes to your minor child applying for a South African passport to relocate to United States, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken.

What are the steps to follow when I want to relocate to Las Vegas, United States with my minor child? There is another parent.

To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Las Vegas, United States.

What can I do if the other parent does not want to consent to the minor child’s relocation to Las Vegas, United States of America?

If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Las Vegas, United States, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Las Vegas, United States. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Las Vegas, United States of America, the Court would make it possible despite the issue of consent or refusal.

What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Las Vegas, United States of America?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Las Vegas, United States of America – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Las Vegas, United States of America, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself.

Getting legal assistance or help with your relocation application to Las Vegas, United States of America

If you require legal assistance or representation with relocating to Las Vegas, United States due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

Posted on by Telelaw

32 Relocation with my minor child to South Korea, Seoul (Consent and Refusal) – Advocate Muhammad Abduroaf The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you. Relocation of your minor child to Seoul, South Korea If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages nine or ten) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Soweto or Polokwane, South Africa, and you want to relocate to Seoul, South Korea, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation. What about Passport Consent to travel or relocate to Seoul, South Korea? The same applies when it comes to your minor child applying for a South African passport to relocate to South Korea, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken. What are the steps to follow when I want to relocate to Seoul, South Korea with my minor child? There is there another parent. To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Seoul, South Korea. What can I do if the other parent does not want to consent to the minor child’s relocation to Seoul, South Korea? If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Seoul, South Korea, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Seoul, South Korea. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Seoul, South Korea, the Court would make it possible despite the issue of consent or refusal. What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Seoul, South Korea? If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Seoul, South Korea – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Seoul, South Korea, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself. Getting legal assistance or help with your relocation application to Seoul, South Korea If you require legal assistance or representation with relocating to Seoul, South Korea due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

Posted on by Telelaw

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