Child Custody21 May 2024

Divorce Article 6: Interim Relief In Matrimonial Matters.

divorce. In this instance, it may be necessary to seek interim relief. This is specifically regulated in both the High Court and

Magistrates Court Rules. It should be noted that these Rules deal only with

pending matrimonial disputes and have no application to any matrimonial dispute

which has come to an end by a final divorce. A

matrimonial action may be 'pending' even though a summons has not yet been

issued.

The interim relief that can be claimed in terms of

the Rules is as follows:

1. Maintenance pendente

lite, in this action a spouse

would be claiming maintenance either for the spouse him or herself or for any

children pending the final hearing in which evidence is led. Maintenance pendente

lite is intended to be interim (temporary) and cannot be determined

with the same degree of precision as would be possible in a trial where

detailed evidence is adduced. Here the spouse is entitled to reasonable

maintenance based on the following grounds:

a. The marital standing of the parties;

b. The spouse’s actual and reasonable requirements;

and

c. The

paying spouse’s capacity to meet such requirements.

2. A

contribution towards the costs of a pending matrimonial action, this action is

based on the duty of one spouse to support the other. The spouse claiming this

contribution must be able to show the court that he or she does not have

sufficient means to present his or her defense or action to the court. It

should be noted that the spouse is not entitled to claim all anticipated costs

but only a substantial contribution.

3. Interim custody of any child - The court will

generally be reluctant to upset the status quo concerning the custody of minor

children. The principle of preserving the status quo is, however, subject to

the considerations that the paramount interest of the children must

nevertheless prevail and that the status quo must not constitute an unreasonable

state of affairs. Normally young children should

go to the mother; the separation of children from

one another should where possible be avoided; and

only in exceptional circumstances will the courts permit children to be placed

in the hands of third persons.

4. Interim access to any child, the same rules and

considerations that are stated above in 3 are applicable here and nothing

further needs to be stated. However, in this action, only access, and visitation, are

requested from the court.

In our

next article, we shall explore a final consideration before an opposed divorce

is instituted, The Domestic Violence Act 116 of 1998

May 21, 2024