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Question
Posted by: michel | 2010/10/29

Court Agreement

Hi there

On divorce, the maintenance agreement was that the ex-husband pays 50% and the ex-wife pays 50%. If the ex wife does not pay her half, can the ex-husband go to court and claim?

When going through a custody battle, if the ex- wife gets the child to live with her, and proves that she cannot afford to pay half of the maintenance, does this mean that the ex-husband has to contribute more? Even though she has agreed to pay half?

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Our expert says:
Expert ImageFamily law expert

Yes, the husband can claim against the wife for arrear maintenance. Violation of the Settlement Agreement amounts to contempt of court which may result in a criminal offence. The ex-wife will need to apply for variation of the Settlement Agreement if her circumstances changed since the time the agreement was made an order of court, only if she can prove that her circumstances changed in such a manner that she is not able to afford to pay her portion anymore will the court minimize her contribution. Having said that the arrear maintenance may still be claimed and payable by her. Both parties have an obligation to pay maintenance according to their means.

Bertus Preller
Family Law Attorney
Abrahams and Gross Inc.
www.divorceattorney.co.za
bertus@divorceattorney.co.za

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Our users say:
Posted by: family law expert | 2010/10/30

Yes, the husband can claim against the wife for arrear maintenance. Violation of the Settlement Agreement amounts to contempt of court which may result in a criminal offence. The ex-wife will need to apply for variation of the Settlement Agreement if her circumstances changed since the time the agreement was made an order of court, only if she can prove that her circumstances changed in such a manner that she is not able to afford to pay her portion anymore will the court minimize her contribution. Having said that the arrear maintenance may still be claimed and payable by her. Both parties have an obligation to pay maintenance according to their means.

Bertus Preller
Family Law Attorney
Abrahams and Gross Inc.
www.divorceattorney.co.za
bertus@divorceattorney.co.za

Reply to family law expert
Posted by: FIO | 2010/10/29

Yes he can go to court to get her to pay half, as per the agreement.

But if she is incapable of paying half, the the court cannot force her to pay what she hasn''t got. It often happens that fathers cant pay what the order says, in which case the father should apply for a reduction. The court can request all documentation to prove or substantiate request for less, such as bank account statements, payslips etc.

At the end of the day, the childs expenses need to be paid. In order to cover the expenses the parents often have to sacrifice some of their own expenses. Its often the case that even insurance policies etc have to be stopped as the money is more importantly needed for childs immediate expenses. Parents argue, for example, that an education policy is important and cannot be stopped, but a court would say that the need to eat now is more important than the need for education in the future.

The agreement may be half, butin actuial fact the correct way to determine maintenance is to firstly determine costs for childs essential needs. Essential is the important point here. Then the amount each parent contributes is proportional to their respective incomes.

If childs expenses are R6000, and parents earn R10k and R20k, then the one parent will pay R2k and the other R4k.

Make sense? But if either parent cant afford the amount, then somewhere they must cut personal costs, or cut childs expenses. Failing that, court will only order the maount to be paid that a parent can reasonably afford to pay.

Reply to FIO

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