Divorce can be tough –but maintenance can be even tougher

Legal Matters

By Sheri Breslaw Director at law firm, Fairbridges Wertheim Becker

When a relationship fails, things can become acrimonious and uncomfortable. But, what’s very important is that the care of the children from that relationship should be top of mind. A big part of that is financial support for the children. 

Family law attorney Sheri Breslaw of Cape Town law firm Fairbridges Wertheim Becker shares advice about what steps you can take if you find yourself in this situation. She also answers questions from our readers.

Not divorced, but considering getting divorced

When you split or start the divorce process, one party may choose to hold back on certain payments because the relationship has soured. If the children are with Parent 1, and Parent 2 has stopped paying, Parent 1 can apply to the divorce court for an interim court order for the payment of maintenance for the children and the spouse, as well as for some funds for legal costs. The parent doing this will have to provide an affidavit stating their financial circumstances and explain why financial assistance is needed. Parent 2 may file an affidavit in reply.

The case will be argued before a judge who will then make an order. This interim order remains in place until the divorce has been finalised or until either of the parties’ circumstances change which necessitates a further application to court.

No divorce process on the go

You may not be married or you may not be taking steps to get divorced but, if you and/or your children need financial support, you have the right to approach the Maintenance Court nearest to where you live or work. There you will fill out an application form with the help of the Clerk. 

The court will subpoena the other parent to appear in court for a maintenance enquiry. During that process, the Clerk will assess your financial circumstances and those of the other parent. You will have to provide documentary proof relating to your financial circumstances.

The Clerk will try to assist both parties to reach an agreement about maintenance. This will be made an order of court.

But, if no agreement is reached, the Clerk will refer the matter to a Magistrate. Both parents will then have to give evidence regarding their financial situations, and the Magistrate will make a ruling which will become an order of court.

Emergency situations

Either party may have to leave a relationship suddenly and under pressure, such as when abuse has taken place. In this instance, there’s probably a need for a faster process for obtaining maintenance. 

The person can approach the Magistrate’s Court for a Domestic Violence interdict, which includes receiving emergency monetary assistance. The Clerk of the Domestic Violence Court will assist with the completion of the forms, and the Magistrate may then grant an interim interdict. The police will serve the interdict on the other parent, and the other parent is then obliged to comply with the terms of the court order. 

The interdict may be made final later on by the Magistrate, once a court date has been set for both parties to appear before the court.

Maintenance from other sources

If the parent of the children cannot afford to pay maintenance, the other parent may be able to apply for financial support from the first parent’s parents, i.e. the grandparents. The parent needing the assistance should approach the Maintenance Court and follow the same process as previously detailed. The grandparents would be subpoenaed to come to court where their ability to pay maintenance for their grandchildren will be assessed.

The death of a parent

If a parent dies and has not provided in a Will for the maintenance needs of a dependant child, the other parent may approach the Executor of the deceased’s estate and put in a claim against the estate. If there is a Will that makes suitable provision for the maintenance of the child, the Executor of the estate will carry out the terms of the Will.

Calculation of maintenance amount

The amount of maintenance that a parent has to pay is calculated based on two elements:

►  The monthly costs for the child. This involves calculating both direct and indirect costs.

Direct costs are the monies needed for expenses associated with the child only, e.g. school fees, clothing, nappies, costs of extra-curricular activities.

Indirect costs are the costs that are apportioned among members of the family, e.g. groceries, rent, electricity, transport, etc.

►  The amount that each parent can afford to pay.

When the various total costs are worked out, the ability of each parent to pay is considered by looking at both income and assets. Based on this, the financial responsibility of each parent is calculated according to their own financial means.

Readers’ questions

Q: My ex-husband was ordered by the High Court to pay me R15 000 per month. He paid for a while but, when Covid started, he said he could only afford to pay R5 000 per month. How do I get him to pay the full amount? Also, how
do I get the arrears he owes?

Sheri replies:
If there is a court order in place and the parent has not met the terms of that order, the parent is in contempt of the court order. You can follow a few different routes:

Lay a criminal charge against your ex-husband. A criminal prosecution may then follow. The threat of criminal action may be the prompt for your ex-husband to meet his obligations.

If your ex-husband is in formal employment, you should apply to the Maintenance Court to issue a garnishee order. His employer will be ordered to deduct the maintenance amount from his monthly salary, and to pay the funds over to you.

The Maintenance Court may issue a warrant of execution. This allows the Sheriff of the Court to demand the outstanding funds from your ex-husband. If he still does not pay, the warrant authorises the Sheriff to create an inventory of all your ex-husband’s movable assets at his home; these items can be sold on auction to raise the funds due to you. If there is immovable property, such as a house, you can apply to the court for permission to sell the immovable property so that the outstanding maintenance amount can be settled.

Q: How do I get my ex-husband to pay the maintenance due in terms of a court order if he has left the country?

Sheri replies:
If the country that your ex-husband has gone to is a signatory to the Reciprocal Enforcement of Maintenance Orders Act, the court order can be enforced in the country he has gone to. The Maintenance Court here has to use diplomatic channels to approach the court in the other country for the enforcement of the maintenance order.

• Published in the December 2023/January 2024 issue – Click here to start reading.

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