By the Family Law Team

What can you do about money while you await the allocation of a trial date for divorce proceedings?  South African law makes provision for this in the form of a Rule 43 application.  This is an interim application that can be brought whilst matrimonial proceedings are pending, and it is there to address:

• Interim maintenance for a spouse and children;
• Interim care and contact regarding children;
• a contribution towards the costs of the pending matrimonial action (pendent lite).

One would think that Rule 43 proceedings provide all spouses with a remedy until the finalisation of matrimonial proceedings.  In a recent case heard in the Durban High Court, a Muslim mother of two whose marriage was by Islamic Rites only and was never registered in terms of the Marriage Act No. 25 of 1961, was faced with the argument that the she was not a "spouse" within the meaning of the rule and that the rule was accordingly not applicable to her.  The court in this matter, however, found that the wife was entitled to relief under rule 43.  This case in the Durban High Court is both ground breaking and precedent setting, as the order by Judge Fikile Mokgohloa gave legal recognition to the marriage and paves the way for further court action that the woman intends to bring in order to be lawfully divorced.  Judge Mokgohloa ordered the husband to pay R20 000 per month maintenance for her and the children, and to pay for their reasonable educational costs, not exceeding R5 000 per child per month.  She also ordered that he contribute R15 000 to his wife’s legal costs.

In the decision of  Zaphiriou v Zaphiriou 1967, Trollip J stated: “

“Rule 43 was merely designed to provide a streamlined and inexpensive procedure for procuring the same interim relief in matrimonial actions as was previously available under our common law in regard to maintenance and costs, and I think, therefore, that Rule 43 must be construed accordingly, in that the “spouse” must be interpreted as including not only a person admitted to be a spouse but also one who alleges that he or she is a spouse, and that allegation is denied.  In other words, the Rule also applies where the validity of the marriage or its subsistence is disputed.”

The Constitutional Court has, however, drawn a clear distinction between married people and unmarried people who simply co-habit.  In Daniels v Campbell and Others 2004, Sachs J., discussed the difference between the Court’s decisions in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 1999 and Satchwell v President of the Republic of South Africa and Another 2002, highlighting the distinction between married and unmarried persons.  Sachs J stated as follows:

“Central to the determinations in National Coalition and Satchwell was a legal finding that it would place an unacceptable degree of strain on the word ‘spouse’ to include within its ambit parties to a permanent same-sex life partnership.  Thus, in Satchwell, Madala J pointed to members of such same-sex partnerships as well as to heterosexual couples who chose not to marry, as belonging to a class of persons who could not be considered to be ‘spouses’. The crucial distinction underlying the two judgments is the one made between married and unmarried persons, not that between persons married under the Marriage Act and those who are not….I accordingly do not agree that the two cases serve as authority for denying to parties of Muslim marriages the protection offered by the Acts (the Marriage Act and the Divorce Act).”

It follows from the above that people who are co-habiting and are not married cannot benefit from Rule 43 proceedings, despite the fact that their needs may be exactly the same as those of a married person.