Claiming spousal maintenance after divorce – a debate

A very common question that often sparks debate is whether a party can claim interim, or temporary spousal maintenance from an ex-spouse after a divorce order has been granted.

Rule 43 provides as follows, “this rule shall apply whenever a spouse seeks relief from the court in respect of…”(a) maintenance pendente lite, (b) a contribution towards the costs of a matrimonial action, pending or about to be instituted, (c) interim care of any child, and (d) interim contact with any child”.

For the most part, the courts have always interpreted the rule in a strict sense, in that one cannot claim interim spousal maintenance once a divorce order is granted. However, some courts, and specifically, the Eastern Cape division in Grahamstown in November 2020, have taken a more flexible approach.

In the case of CM v AM, the court based its decision on the Constitutional court’s decision in S v S and Another where the Constitutional Court held at paragraph 56 that “there is no reason why rule 43 applications should not be expansively interpreted as some courts already have done”.

In Beckley v Beckley a rule 43 application was launched seeking interim spousal maintenance pending a final determination of the wife’s monthly cash maintenance. This court took the strict approach that the rule 43 provisions were not applicable as there was no pending divorce action at the time.

However, in KO v MO, under similar circumstances to the Beckley case, the court found that the action will still be pending until the separated issues are decided. Therefore, if there are issues that have been separated from the divorce order being granted, such as the amount of the cash contribution to be paid monthly, and such issues still need to be determined, as often is the case where such issues are referred to the maintenance court, then, according to this flexible approach, an ex-spouse can launch a rule 43 application after a divorce order is granted whilst the separated issues are yet to be determined.

In Goosen v Goosen, held in the High Court Johannesburg Division, the court yet again had to make a finding as to whether a rule 43 can be adjudicated upon after a divorce order was granted, but where a suspensive condition had not yet been fulfilled. In this case, divorce proceedings were launched in July 2009, and in September 2009 a rule 43 order was granted which remained in place until the final order of divorce was granted in November 2012 which ordered inter alia:, the division of the joint estate, the appointment of a receiver and liquidator, to be appointed to divide the joint estate, if the parties could not agree on the division within four weeks from the date of the divorce order, that the issue of the Respondent’s maintenance be held over until the finalization of the liquidation of the joint estate, and that the Rule 43 order in place at the time of the divorce remains in place until  the issue of the Respondent’s maintenance is resolved. Thus, creating a suspensive condition for the application of the payment of spousal maintenance, being that such amount of maintenance would depend on how the joint estate was to be divided.

The husband (the Applicant) applied for a variation of the standing Rule 43 order in terms of Rule 43(6) after the above final order of divorce was granted, applying for a reduction in maintenance, which was countered by the wife (the Respondent) , who applied for an increase in the amount of maintenance.  The judge had to decide on 2 issues, namely:

  1. Whether rule 43(6) was the correct procedure under which to bring an application for a variation of an interim maintenance order, given that the decree of divorce was granted 4 years beforehand, and the suspensive condition under which such interim maintenance order was granted, being the division of the joint estate, remained in place, and
  • What steps had to be taken to expedite the finalization of the liquidation and division of the joint estate?

The judge ultimately believed the High Court cannot ignore legislation that already provides for a certain procedural issue and thus held it would have been more appropriate to launch the application for a variation in the Maintenance Court in accordance with the provisions of the Maintenance Act 99 of 1998, which court has the appropriate machinery to deal with such issues.

In summary, the courts have all taken very different approaches as to whether a spouse can claim interim spousal maintenance after a divorce order has been granted. It seems however, that a spouse will more likely be successful in a claim for interim spousal maintenance after a divorce order is granted in circumstances where the order was granted under a suspensive condition which still exists. Parties however, should always first consider approaching the maintenance courts under such circumstances as they are better equipped to deal with such issues and the High Courts often do not involve themselves in the determination of maintenance issues in general.

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