A rise in January divorces in South Africa – and the rule you should be aware of

The end of the festive season sadly sees an expected rise in divorce actions, leaving many people anxious about their finances, arrangements around their children, and even how to pay the legal fees required to institute such divorce proceedings, says Shani van Niekerk, a senior associate at law firm Adams & Adams.

“Unfortunately, as is sometimes the case, the most vulnerable become more so when realising these fears, particularly during acrimonious divorces. These fears in fact hinder many from instituting divorce proceedings. Subsequently, many may continue to be trapped in unhappy or even abusive marriages.

“The High Court Rules – specifically Rule 43 – make provision for an application to set aside these specific fears,” she said.

A Rule 43 application is one in which the High Court provides for interim assistance during divorce actions. The interim relief sought by an applicant must, however, relate to one of the following categories:

• Maintenance for a spouse and/or minor child pending the outcome of the divorce proceedings;
• A contribution towards the legal fees of the divorce;
• Interim residency and care of any minor child; and
• Interim contact with any minor child.

A Rule 43 application can be instituted at any stage of divorce proceedings, subject to a divorce summons having already been issued and served. Rule 43 applications are available to either of the spouses and are non-gender specific, said van Niekerk.

“Unlike many court proceedings, a Rule 43 application affords an applicant speedy and expeditious relief. Applications can be finalised within a few months as opposed to standard applications, which can take months, or even years, to be concluded.

“The law in respect of Rule 43 applications has evolved positively in recent years, and now makes provision for the filing of a Financial Disclosure Form (FDF); which compels both parties to declare all of their assets, liabilities, monthly income and expenses.”

In terms of the latest practice directives of the Pretoria and Johannesburg High Courts, both parties are required to file a completed FDF under oath, together with supporting documentation, prior to the hearing of the Rule 43 application, said the legal expert.

“The implementation of FDF’s in Rule 43 applications now affords both parties, indeed and the court, a bird’s eye view of the exact current financial status of both spouses. Fortunately, the days of not knowing what one’s spouse earns or owns is long gone,” she said.

A change in marriages and divorces

Data published by the Department of Social Development in 2021 shows South Africa has seen a steady decline in traditional ‘nuclear’ families, with similar changes in divorce and marriage rates being seen over the last decade.

Registered marriages steadily declined in the 10-year period between 2008 and 2017, dropping from 186,522 in 2008 to 135,458 in 2017. A similar decrease has been seen in customary marriages, and in 2017, just 2,588 customary marriages were registered at the Home Affairs. This is a steep drop from the 16,003 customary marriages recorded a decade earlier in 2008.

Other metrics show that there has been a steady increase in divorce rates across the country.

Together, the decrease in marriage and increase in divorce has led to a sustained decline in couple-headed households for some time in South Africa, the department said.

More recently, legal experts pointed to a surge in new divorce instructions in the country since the onset of the Covid pandemic.

Family lawyers said that February and March are typically divorce filing months, however, the pandemic has caused a spike in other months amid increased job losses, and psychological effects including anxiety and depression, while couples were also forced into close proximity for extended periods of time during lockdown.

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