Interim relief in matrimonial matters.

In some instances, spouses cannot agree on the division of the matrimonial estate and will enter an opposed divorce. In other instances, a party may be vindictive or attempt to hinder or punish the other party for instituting the action for 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 has 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 are 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 and 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:

1. The marital standing of the parties;

1. The spouse’s actual and reasonable requirements; and

1. The paying spouse’s capacity to meet such requirements.

1.  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 defence 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.

1. 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; only in exceptional circumstances will the courts permit children to be placed in the hands of third persons.

1. 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, visitation, is 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