Navigating Family Dynamics: A Comprehensive Analysis of a Rule 43 Application. – T E v V E (2023/021747) [2024] ZAGPJHC 94 (2 February 2024).

Rule 43 applications serve as a pivotal yet challenging facet of divorce proceedings, offering a singular affidavit to each litigant to encapsulate a comprehensive summary of often intricate claims related to children and/or financial matters. The advent of the Financial Disclosure Form marks a significant evolution in these applications, demanding a deeper dive into the financial intricacies than previously required. This additional layer aids the courts substantially in adjudicating monetary disputes. However, given their relative novelty and the occasional oversight by litigants regarding the solemnity of their sworn statements, coupled with the constrained timeframe courts have to deliberate on Rule 43 Applications, drafting, arguing, and adjudicating these applications remain a formidable task.

The backdrop against which Rule 43 assistance is typically sought is one of discord and an inability to arrive at amicable or mediated resolutions. Once litigation is underway, it signifies a breakdown in mutual understanding, making it rare for Rule 43 Affidavits to be devoid of accusations of objectionable behaviour relating to the children’s relationship with the parties and allegations around the concealment, expenditure, and earning of money.

The adage that in disputes, there exists “your version, my version, and the truth” is particularly apt. In the context of Rule 43 applications, the court must navigate through even more versions of the truth, especially concerning matters related to children where objectivity is elusive.

The court’s role, then, is to discern what is in the best interest of the children and how the available, or at the very least accessible, funds for interim purposes can be allocated most effectively. This ensures that all parties involved — primarily the children, but also the parents — can sustain a semblance of their pre-litigation lifestyle without imposing undue financial strain on the family’s primary income earner.

In the case at hand, the parties’ consensus to defer to expert assessments regarding the children’s welfare and the agreed-upon terms for an evaluation process signal a cooperative step forward. This approach, particularly the applicant’s initiative and willingness to cover the costs, underscores the importance of prioritising the children’s best interests above all. However, the stipulation that the assessment awaits the sale of the family home, albeit with a provision for earlier commencement if financially feasible, reflects a pragmatic acknowledgment of the financial constraints at play. This arrangement, while practical, also highlights the inherent complexities and challenges embedded in Rule 43 applications, where financial, emotional, and logistical considerations intertwine, requiring the court to navigate these intricacies with empathy, fairness, and a steadfast focus on the welfare of the children involved.

The introduction of the Financial Disclosure Form has significantly altered the landscape of Rule 43 applications in divorce proceedings, aiming to bring more depth and clarity to the financial aspects of these cases. This development was pivotal, considering that financial disputes often lie at the heart of divorce conflicts, entangling issues of maintenance, asset division, and child support. However, the practical application of these forms and the subsequent adjudication process by the courts had not been without challenges.

Enhanced Financial Scrutiny

Previously, financial disclosures in Rule 43 applications might have been approached with a level of brevity that left courts wanting for detail and depth. The Financial Disclosure Form sought to address this gap by requiring litigants to provide a comprehensive account of their financial situation. This requirement was designed to equip the courts with a fuller understanding of each party’s financial capabilities and needs, facilitating more informed and equitable decisions regarding interim maintenance and asset preservation.

Adjudication Complexities

Despite these improvements, several factors complicate the adjudication process:

  • Infancy of the Forms: The Financial Disclosure Forms are relatively new tools in the judicial system. Their effective integration into divorce proceedings is still evolving, with courts and litigants alike navigating their intricacies and potential impacts on case outcomes.
  • Litigants’ Attitudes: There’s an observed tendency among some litigants to underestimate the seriousness of these disclosures. The forms are completed under oath, implying a legal obligation to provide accurate and complete information. However, not all parties attach the appropriate level of significance to this duty, potentially undermining the forms’ effectiveness in revealing the true financial landscape.
  • Limited Court Time: The time available to courts for adjudicating Rule 43 applications is relatively limited, given the breadth of issues these applications can cover and the depth of analysis required by the Financial Disclosure Forms. This constraint can make it challenging for courts to thoroughly evaluate the financial nuances of each case, particularly when faced with incomplete or inaccurately represented disclosures.
  • Evolving Judicial Approach: As courts accumulate experience with these forms, the judicial approach to assessing and utilizing the disclosed information is evolving. This learning curve affects how quickly and effectively courts can integrate this detailed financial data into their decision-making processes.

To navigate these challenges, courts are developing more nuanced strategies for evaluating financial disclosures and adapting their procedural approaches to ensure that the financial aspects of divorce cases are addressed with the necessary thoroughness and equity. This includes closer scrutiny of the forms submitted, willingness to question or seek clarification on provided information, and a growing reliance on financial experts to interpret complex financial data.

Moreover, the courts are emphasising the importance of litigants understanding the gravity of their disclosures, encouraging more diligent and honest reporting. The ultimate goal is to achieve a fair and sustainable interim arrangement that serves the best interests of all parties involved, particularly where children’s welfare is concerned.

While the Financial Disclosure Form represents a significant step forward in ensuring that financial disputes in divorce proceedings are addressed with greater depth and accuracy, the challenges of adjudication remain a work in progress. Courts are tasked with balancing the need for detailed financial scrutiny with the practicalities of limited time and resources, all while fostering an environment where litigants appreciate the seriousness of their financial disclosures.

In divorce proceedings, the welfare of the children involved is of paramount concern, particularly during the interim phase before a final order is made. The court is tasked with making decisions that protect the children’s interests, ensuring they are provided for financially and that their emotional and physical well-being is maintained. This responsibility involves navigating the complex interplay between maintaining the status quo in terms of lifestyle and addressing the immediate needs of the children and the financially weaker party, often the respondent in these applications.

Balancing Financial Support

The court must carefully consider the financial aspects of interim support. This includes determining an appropriate level of maintenance for the children and possibly the respondent, ensuring that they can continue to live in a manner that is as close as possible to their pre-separation standard of living. The challenge lies in balancing the needs and resources available, especially when the sole income earner is expected to cover their expenses and support the respondent and children. The court’s task is to find a middle ground that prevents undue financial strain on the payer while ensuring the needs of the children and the respondent are met.

The introduction of the Financial Disclosure Form has aided in this process by providing a more detailed view of each party’s financial situation. However, the adjudication of these forms within the limited timeframe of Rule 43 applications presents its challenges, as detailed financial analysis is required to make fair and informed decisions about interim maintenance.

Child Care and Contact Arrangements

Beyond financial considerations, the court must address care and contact arrangements to safeguard the children’s emotional well-being. This involves determining where the children will reside primarily and how they will maintain a meaningful relationship with the non-residential parent. The court aims to ensure that these arrangements reflect the best interests of the children, facilitating a stable and nurturing environment for them amidst the upheaval of divorce.

In the case at hand, the court has taken innovative steps to address these concerns by ordering a full forensic assessment of the children’s best interests regarding parental responsibilities and rights. This assessment, to be carried out by appointed experts, was pivotal in making informed decisions about the children’s care, primary residence, and contact with the non-residential parent. The assessment’s findings guide the court in making a final order that truly reflects the children’s best interests.

Furthermore, the court had ordered interim contact arrangements that encourage a positive and ongoing relationship between the children and their father, acknowledging the importance of this bond for the children’s emotional health. These arrangements were designed to prevent further deterioration of the children/father relationship, ensuring that by the time the assessment is conducted, a foundation for a healthy relationship remains intact.


The court’s interim measures, both financial and concerning child welfare, were carefully crafted to address the immediate needs of the children and the respondent while maintaining a fair balance with the applicant’s financial capabilities. The ultimate goal was to navigate the divorce process in a way that minimises harm and disruption to the children’s lives, ensuring their well-being is at the forefront of every decision. This approach underscores the court’s commitment to acting in the best interests of the children, a principle that guides all aspects of family law proceedings.

The court’s determination regarding the contribution to legal costs represented a critical juncture in ensuring fairness in the divorce proceedings between T E and V E. Recognising the unequal financial playing field, the court meticulously navigated through the respondent’s request for a contribution towards her legal costs, balancing the need to protect her and the children’s rights against the applicant’s financial capabilities.

The court’s decision to mandate the applicant to make a substantial contribution towards the respondent’s legal costs underlines the judiciary’s acknowledgment of the financial disparities often present in divorce cases. This move ensures that the respondent can adequately represent her interests and those of the children, safeguarding the principle of equitable access to justice. The court’s allocation of R452,000 for the respondent’s legal costs, to be paid in instalments, is a testament to its intent to level the litigation field, allowing both parties to engage in the legal process on more equal terms.

This ruling not only addresses the immediate financial inequities but also considered past costs and the comprehensive needs of litigation in determining contributions. By adjusting the respondent’s estimated bill of costs to a more realistic figure, the court demonstrated its role in scrutinising financial claims, ensuring that the contributions are neither excessive nor insufficient for the purpose of fair litigation.

Furthermore, the court’s decision to order each party to pay their own costs for the application speaks to a broader principle of personal responsibility in legal proceedings. This approach encourages parties to consider the financial implications of their legal actions carefully, promoting a more judicious use of the court system.

In essence, the court’s handling of the legal costs in the case of T E v V E reflects a nuanced understanding of the financial dynamics at play in divorce litigation. By providing a mechanism for the respondent to access the necessary legal resources, the court underscored the importance of fairness, equity, and the right to competent legal representation in the resolution of marital disputes.

In the matter of T E v V E, Von Ludwig AJ delivered a comprehensive order that carefully balances the interests of both parties while prioritising the welfare of the minor children involved. The key components of the court’s order were as follows:

  1. Forensic Assessment for Children’s Best Interests: The court mandated a full forensic assessment by Ms. Tanya Kriel and Ms. Sharon Maynard to determine the best interests of the minor children regarding parental responsibilities and rights. This assessment was to be conducted once the former matrimonial home was sold, with provisions for earlier commencement if financially feasible.
  2. Parental Cooperation and Expert Engagement: The court ordered both parties to fully cooperate with the assessment process, including undergoing interviews, assessments, and providing all necessary documentation. This ensured a thorough and informed evaluation of the children’s best interests.
  3. Financial Responsibilities for Assessment: The applicant was held liable for the full costs of the forensic assessment.
  4. Interim Maintenance and Primary Residence: The court outlined specific maintenance contributions for the minor children and the respondent, establishing the minor children’s primary residence with the respondent. This ensured stability and continuity in the children’s living arrangements during the litigation process.
  5. Contact Arrangements: The court crafted a detailed contact schedule for the applicant with the minor children, including provisions for daily communication and alternate weekend visits. This facilitated an ongoing relationship between the applicant and the children, recognising the importance of maintaining parental bonds.
  6. Contribution to Legal Costs: The applicant was ordered to contribute a total of R452,000 towards the respondent’s legal costs, paid in instalments.
  7. Allocation of Expenses: The court specified the applicant’s responsibility for various expenses, including the bond, levies, and utilities for the former matrimonial home, medical aid, school fees, and household staff salaries.
  8. No Order as to Costs of Application: Each party was required to bear their own costs for the application, promoting accountability and encouraging careful consideration of legal actions.

The court’s order in T E v V E encapsulates a meticulous and balanced approach to resolving complex family law disputes. By prioritising the best interests of the minor children, ensuring equitable financial contributions, and fostering parental cooperation, the court exemplified the principles of justice, fairness, and the best interests of the child.

Written by Bertus Preller, a Family Law and Divorce Law attorney and FAMAC accredited Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.