Interim Maintenance pending finalisation of Divorce vs Maintenance after the Divorce

In South African law, two distinct mechanisms deal with maintenance before and after the finalisation of a divorce: interim maintenance orders under Rule 43 of the Uniform Rules of Court, and maintenance orders issued after the divorce decree, in accordance with the Divorce Act 70 of 1979 and the Maintenance Act 99 of 1998. Although both mechanisms aim to ensure financial support, they differ significantly in their purpose, function, and duration.

What is a Rule 43 Interim Maintenance Order?

In essence, Rule 43 of the Uniform Court Rules ensures that one party is not left destitute or financially disadvantaged during the often-lengthy divorce process. The court recognises that many spouses, often the primary caregiver, may not have the financial means to sustain themselves or their children while the divorce is ongoing.

Rule 43 of the Uniform Rules of Court offers a quick and cost-effective legal remedy for spouses in divorce proceedings who require interim relief pending the finalisation of their divorce. The Rule is designed to address urgent financial needs during the divorce process. It caters for interim maintenance for a spouse and/or minor children, interim care and contact arrangements, and contributions towards legal costs.

A Rule 43 application is typically launched early in the divorce proceedings. The procedure is less formal and generally quicker than a trial. These orders are temporary in nature and only remain in effect until they are replaced by the final order. Circumstances in which this order may be varied are extremely limited, and my only be done when there was a material change in circumstance.

Post-Divorce Maintenance Order

The primary aim of post-divorce maintenance is to ensure that a financially dependent spouse or child continues to receive the necessary support after the marriage has been dissolved.

In contrast, post-divorce maintenance orders are long-term or permanent orders made as part of the divorce decree. These orders are issued, once all relevant facts and evidence have been properly ventilated during trial or through settlement. Post-divorce maintenance can apply to Spousal maintenance (either rehabilitative or permanent) or child maintenance (until the child is self-supporting). Post-divorcemaintenance can be ordered by a court or agreed upon between the parties and the court will then make the agreement an order of the court.

Variation and rescission of post-divorce maintenance orders are more flexible in that either party can apply for variation. In the case where the paying party wishes to change the prescribed maintenance or is perhaps in default, the court will investigate the reasons for the default. If the paying parent is genuinely unemployed or facing hardship, the court may consider adjusting the amount temporarily.

However, if the party is intentionally avoiding payments, the court has several enforcement mechanisms at its disposal. These include attachment of assets, blacklisting, or a emoluments attachment order where the defaulting parent’s employer are ordered to deduct maintenance directly from their salary and pay it to the receiving parent.

Conclusion

Since maintenance serves a practical purpose, the court will only grant a maintenance order if it is necessary and proper to do so. The court will considere several factors as set out in the Divorce Act, including the parties’ standard of living during the marriage, the income and earning capacity of each party, any direct or indirect contributions one spouse made (e.g. being a stay-at-home parent) and many more. However, because Rule 43 proceedings are intended to be swift, the court often bases its decision on limited documentation and without the benefit of oral evidence.

When it is determined that maintenance will indeed be due, payment of that maintenance is not optional and can be legally enforced. It’s important to note that maintenance is not meant to punish one spouse or reward the other. It’s a financial remedy, not a moral judgment.

At our firm, we regularly assist clients with maintenance disputes, whether you’re trying to recover unpaid support or need help applying to reduce your payments due to changed circumstances. If you’re unsure about your rights or how to proceed, our family law team is here to help you take the next step with clarity and confidence.