Posted by: Vava | 2010/09/26

Rule 43 application

In divorce process and applied for rule43.Husband who''s an advocate, opposed the rule43. He currently pays R3500 for all three children(15yrs  7yrs and 2yrs). The amount he contributes does not cover their needs and the first two attend private school. Meanwhile, he only started seeing them on 04-09-2010 after not being in contact for a year and a half. All children are on my medical aid. Basically I do everything for them. I pay the bond as it''s in my name. He moved out and stays with his mom.In the application I have provided proof of all costs relating to the children school fees, food, clothing, uniforms, baby''s formula milk etc. Is this man taking advantage or being spiteful. The children have been used to a certain lifestyle when he was around, but now it seems he spites me at their expense. How do I approch his opposition of rule43, as I''m doing this on behalf o his own kids?Please advice

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Our expert says:
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Firstly, as a legal practitioner myself, I find it totally unacceptable that a colleague should act in such a manner, i.e not regarding the children’s interests as paramount. From the facts that you had given, any judge will rule in the children’s favour and as such you have done the right thing to apply in terms of Rule 43 for interim relief pending the divorce. A rule 43 is an inexpensive procedure to obtain interim maintenance pending the divorce and I will also advise that you ask in the application for a contribution to your legal expenses.

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Our users say:
Posted by: leon | 2014/09/15

what are the costs for this application as i want to apply for this rule to get access to my children.

Reply to leon
Posted by: Vava , To FIO | 2010/09/29

1.I was adviced by my attorney to apply for rule 43. Prior to him filing for divorce, I had applied for maintenance on my own. The claim is for +/- R9500 per child. I don''t really know what happened for the document served on him to state an amount of R950 (there was no order yet).In the process I got served with divorce papers. I informed my attorney of the maintenance issue. The attorney accompanied me to the maintenance ''hearing''. Hubby was so arrogant and told us that he''ll only pay R950 per child and said we are lucky there is no court order on this. He left even before we saw the magistrate. We went to the magistrate to strike the matter off the roll and informed the magistrate that we''ll apply for rule 43.
2.The mediation was done by the maintenance officer when I initially applied for maintenance. In the same forum, he was so furious and told the maintenance guy that he does not require any time wasting as he is an Advocate. He said that he should be making money instead of sitting in the forum.
3. In his divorce papers he stated that the children should stay with me. By then my son was already attending the private school and he had signed the school documents that he ''ll pay the fees, but in vain. Basically, there is no dispute regarding who the children should stay with.
4. The children are all on my medical aid. Basically I take care of all the expenses including buying uniforms etc. During his stay with us, his inflow was +/- R40k per month depending on the how quick his clients paid him. He would even do bail applications to top-up the income. He has petty cash in the office which caters for emergencies. In a nutshell he could take care of his children to the best of his ability. He would buy them expensive clothes and games etc. Everything he did was paid in cash. To sum it up he bought Italian furniture for the whole house cash and managed to furnish his parents house likewise.

Reply to Vava , To FIO
Posted by: FIO | 2010/09/27

By the way, how much have you asked for in your application? If your application is purely for interim maintenance, then fine, but be sure you have all your paper work really up to date, and do not inflate anything, or add in costs that seems to be " pushing"  it a little. Judges have seen loads of these cases, so know when one is trying to squeeze wine out of a rock.

Your hubbies only defence will be his earnings and expenses, and there is little you can do about this. If R3500 is all he can afford, then that is all you''ll get, no matter what your costs are. Many people come horribly short through Rule 43 applications. Do you have any idea of his income and expenses? If he is living with his folks, then his expenses should be quite reduced, theoretically freeing up more money for maintenance.

Best thing you can do is find out as much information as possible about his financial affairs, so that should he lie in court, or present false evidence, or even withold evidence, you can take him to task. Failing that its all pretty much out of your hands now, your application is in, and his opposition is probably being prepared to be lodged.

Reply to FIO
Posted by: FIO | 2010/09/27

What was your motivation for Rule 43 application? Is there a dispute regarding childrens residency etc?

You dont need to worry about his opposition, you have applied, he has been given opportunity to oppose, now court must decide.

I needto ask this of you, as its becoming a big issue these daysk especially since children are involved. Law requires you guys to attempt mediation before litigation. Have you done this? A classic case was the Brownlee case where the judge ordered all legal costs to be covered by the attorneys since they did not advise their clients on the mediation option. Mediation ought to solve the contact and maintenance issues. Failing that, then court shoud be approached.

Once again, why have you applied fro Rule 43, was it necessary. or at the advice orf your attorney, and if so, what''s his/her motivation? If hubby has only started seeing kids recently, is he demanding that they come live with him? It wont happen, unless you are shown to be an unfit mother.

Reply to FIO

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