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Question
Posted by: Anon | 2010-06-22

19 years after divorce

My mom and dad got divorced 19 years ago, they got back together soon after and lived together for another 10 years unmarried. The divorce order ordered my dad to pay her out on half of everything and there was a R1 clause in the order. He continued paying her maintenance, double than what the order was for untill last year October, when he stopped working due to the ressesion. She has now lodged a claim against him in respect of the initial order. Is she wasting everyone''s time and money or does she actually have a case? She was also working and self sustained when they finally seperated for good. He needs to appear in court soon, is there anyting he must take with or do - he cannot afford a laywer either?

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Our expert says:
Expert ImageFamily law expert

The fact that the parties reconciled will certainly be taken into consideration when the Court determines whether your father acted in contempt of a standing order. Moreover, the fact that your father did pay maintenance in excess of what the initial order stipulated, which may result in a finding that your mother was enriched as a consequence of the “over payments” in maintenance. Your father will need to present evidence to the court that there was a substantial change in his circumstances, i.e that he lost his employment and that as a result thereof he is not able to pay maintenance. Only when there are new circumstances since the day of the order will the court intervene or vary the existing order. Unfortunately the order still stands.

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Our users say:
Posted by: family law expert | 2010-06-23

The fact that the parties reconciled will certainly be taken into consideration when the Court determines whether your father acted in contempt of a standing order. Moreover, the fact that your father did pay maintenance in excess of what the initial order stipulated, which may result in a finding that your mother was enriched as a consequence of the “over payments” in maintenance. Your father will need to present evidence to the court that there was a substantial change in his circumstances, i.e that he lost his employment and that as a result thereof he is not able to pay maintenance. Only when there are new circumstances since the day of the order will the court intervene or vary the existing order. Unfortunately the order still stands.

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