“I cannot think of any need in childhood as strong as the need for a father’s protection” – Sigmund Freud
Divorce is a not only an emotionally taxing time, it is also a slow and lengthy process that can sometimes take years to settle. In particular an acrimonious divorce can lead to even longer delays and financial difficulties for the parties involved. In the interim often the rights and obligations of the parties can be left on hold in the grey area of dispute.
Divorce proceedings in South Africa have long held a reputation as being maternal in nature, ensuring the welfare of the mother first and foremost. Many a dinner table conversation has turned on the strength of a mother’s position when divorce involves children. A particularly notorious threat often used is the suspension of a father’s access to his children when the marital relationship fails.
The law of South Africa does provide a procedure that can be used by both the parties to resolve key issues during the interim period before divorce is finalised. This is called a Rule 43 Application. The Rule provides for interim maintenance and financial assistance for litigation, and extends into regulating the custody and access to the children of the marriage until such time as the divorce is settled.
The matter is argued on the papers, with the Applicant serving and filing an Affidavit setting out the facts of the divorce and the interim relief sought. The Respondent may then respond by means of an Affidavit. No further papers are permitted. In order to expedite the process, the court has held on numerous occasions that the papers must be precise and specifically on point, thus avoiding the nastiness of “mud-slinging”.
In particularly difficult divorces, where access to the children is denied due to tactical game playing or spiteful behaviour, a Rule 43 Application can be brought on an urgent basis to secure a fathers ability to communicate with and visit the children.
A Rule 43 Application is a fast and effective means of obtaining clarity on the rights and obligations of the parents and often leads to the full and final settlement of the divorce proceedings at an earlier stage than usually anticipated during litigation.
It is necessary to seek the professional assistance of an attorney when launching an Rule 43 Application as there is no appeal process and poorly drafted papers could lead to an unsuccessful outcome for the Applicant concerned.
– Amy Groenewald. Senior Associate – Lanham-Love Attorneys.
