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Question
Posted by: clueless | 2010/01/21

Just curios on the maintenance issue...

Background: The divorce settlement was drawn up as follows: Husband pays for (2 x kids), school fees, aftercare, school clothes, and school activity, school books, school stationary, and medical. As well as house ex wife stays in, maid, half of levies and security, and he is also responsible for maintenance of house. Plus he pays R2k per month per child, which is supposed to cater for the food and clothes for the kids and all the other expenses.
Now when the divorce settlement was drawn up, the wife had a temp work, however, after/during divorce she got perm position. So as you can see according to D/S the ex wife does not pay for anything –  except her living costs, electricity and own tel. account. The kids stay with ex wife 60% of the month. Now in the interim the dad got married again, so he has two households that he has to maintain. The question is: Can the dad apply for reduction in the maintenance although his current financial situation did not change? Except for new wife and other household? Then if he applies for maintenance to be reduced, do they take the new wives income into account as well?
The only reason for dad to apply for the maintenance to be reduced is that he found out that money paid to mom does not go to the kids. On that note –  may the dad also ask for proof from the mother to show what she does with maintenance money?
Sincerely hope you can give advice - thanks

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Our expert says:
Expert ImageFamily law expert

A maintenance order made in terme of the Divorce Act 70 of 1979 may at any time be rescinded, varied or suspended by a court if the court finds that there is sufficient reason to do so.

Whenever a complaint to the effect that good cause exists for the substitution or discharge of a maintenance order has been made and is lodged with a maintenance officer, the maintenance officer must investigate the complaint and may then institute an enquiry in the maintenance court. After consideration of the evidence adduced at the enquiry the court may, in a case where a maintenance order is in force, make an order replacing that maintenance order or discharging it.

Corresponding provisions in the previous legislation, which regulate variations, spoke of "good cause". As far as possible, one should be held to one's undertaking to pay maintenance. Nevertheless, a court may vary an ill-considered agreement entered into at the time of the divorce. In the case of Reid vs Reid, however, where a maintenance debtor, in seeking a downward variation, contended that he had agreed to an unjust settlement, the court warned that to allow such an argument could lead to abuse of the court process, and that it was highly undesirable that a court should rule on the correctness or justness of another court's order. Before an applicant could question the justness of a maintenance order, he would have to show special circumstances, which in that case had not been done.

In the case of Havenga vs Havenga Judge Harms said that, in general, in the absence of a real change in circumstances there would not be sufficient reason for the variation or rescission of a maintenance order. However, changed circumstances are not a statutory requirement, and there may sometimes be sufficient reason although circumstances have not changed.

Further, in the case of Hotz vs Hotz, where an ex-wife had been receiving maintenace in terms of a divorce order, and it subsequently transpired that she had at the time of the divorce fraudulently failed to disclose her ownership of a flat, counsel argued that the non-disclosure meant that the order for maintenance had to be set aside in toto (as a whole). It was held, however, that what had to be determined was the effect of the fraudulent non-disclosure on the maintenance order. Plaintiff in this matter had the onus of proving that disclosure would have meant that no maintenance would have been ordered or the extent to which the amount of maintenance would have been reduced.

Applicants must make full disclosure of all material circumstances concerning their financial position. The court will take into account a failure to do so and in particulare any suspision of an attempt to mislead the court in determining whether sufficient reason has been established. Not every alteration in financial or other circumstances will justify a variation in maintenance. Conversely, a change in the Applicant's financial position is not essential before an existing order may be altered.

It is not sufficient to provide details of the income of the parties. The inability to pay must also be shown. The person to whom the maintenance is payable is in entitled to expect some stability of income and be able to plan for the future. If persons liable to pay maintenance have themselves caused the deterioration in their financial circumstances, for instance by entering into a second marriage, the court will be inclined to be less sympathetic. However, the question for "feathering a second nest" is a vexed one. Was was pointed out in Hancock vs Hancock, it might be logical always to refer to prefer the right of the first wife, but this could create hardship, especially in respect of children of the second marriage. The problem arising out of "serial marriages" received the attention of the court in that case. It commented on the fact that the maintenance debtor, with full knowledge of his existing maintenance obligations, entered into a fourth marriage immediately after his third divorce. In applications for variations, divorced men who have remarried often argue that they have to support stepchildren or other relatives by affinity, which they are not by law obliged to do. The courts are not inclined to be sympathetic towards such arguments. In Chizengeni vs Chizengeni reference was made to the apparently conflicting judicial views on the position of the first wife vis-a-vis the husband's new family. It was suggested that the true position is that obligations owed to a first wife and children are properly regarded as a prior charge, but that his subsequent commitments may reduce his ability to pay what was originally ordered. The standard of living of all parties may have to be reduced.

Note, however, that the Maintenance Act now provides as follows:

1. The maintenance court, in determining the amount of maintenance to be paid to a child, must take into consideration that a parent's duty to support a child exists, whether a child is born of a first or subsequent marriage; and
2. as from the commencement of the Act, no legal provisions that a parent's obligations to a child of a first marriage has priority over his or her obligations to another child will any force or effect.

Although the courts generally frown on persons liable to pay maintenance who voluntarily embark on a course of conduct which makes it difficult for them to fulfill their maintenance obligations, no invariable rule can be formulated, and the circumstances of each case must be considered.

It is therefore my view that the husband in this matter can surely approach the maintenance court for a reduction in the maintenance order, due to the facts stipulated above.

In terms of the question that the maintenance does not go to the children, it must first be proved and it will be difficult to prove such allegations. The custodian parent will normally use the maintenance for the upbringing of the children.

It is therefore my humble view that in this matter and the facts to my disposal, that the father or the husband really has a good case to rescind or vary the said maintenance order, because of the fact that the maintenace act is very clear that according to the common law, both parents must support children proportionately according to their means and that was confirmed in the case of Herfst vs Herfst 1964 (4) SA 127 (b).

Bertus Preller
www.divorceattorney.co.za

The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical exmanication, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.

2
Our users say:
Posted by: chantel | 2010/01/22

Wow now there she is just milking the poor dad it makes me mad to think that there are woman out there that are really battling with there ex to get maintenace and then you get woman that can do this

Reply to chantel
Posted by: Family law expert | 2010/01/22

A maintenance order made in terme of the Divorce Act 70 of 1979 may at any time be rescinded, varied or suspended by a court if the court finds that there is sufficient reason to do so.

Whenever a complaint to the effect that good cause exists for the substitution or discharge of a maintenance order has been made and is lodged with a maintenance officer, the maintenance officer must investigate the complaint and may then institute an enquiry in the maintenance court. After consideration of the evidence adduced at the enquiry the court may, in a case where a maintenance order is in force, make an order replacing that maintenance order or discharging it.

Corresponding provisions in the previous legislation, which regulate variations, spoke of "good cause". As far as possible, one should be held to one's undertaking to pay maintenance. Nevertheless, a court may vary an ill-considered agreement entered into at the time of the divorce. In the case of Reid vs Reid, however, where a maintenance debtor, in seeking a downward variation, contended that he had agreed to an unjust settlement, the court warned that to allow such an argument could lead to abuse of the court process, and that it was highly undesirable that a court should rule on the correctness or justness of another court's order. Before an applicant could question the justness of a maintenance order, he would have to show special circumstances, which in that case had not been done.

In the case of Havenga vs Havenga Judge Harms said that, in general, in the absence of a real change in circumstances there would not be sufficient reason for the variation or rescission of a maintenance order. However, changed circumstances are not a statutory requirement, and there may sometimes be sufficient reason although circumstances have not changed.

Further, in the case of Hotz vs Hotz, where an ex-wife had been receiving maintenace in terms of a divorce order, and it subsequently transpired that she had at the time of the divorce fraudulently failed to disclose her ownership of a flat, counsel argued that the non-disclosure meant that the order for maintenance had to be set aside in toto (as a whole). It was held, however, that what had to be determined was the effect of the fraudulent non-disclosure on the maintenance order. Plaintiff in this matter had the onus of proving that disclosure would have meant that no maintenance would have been ordered or the extent to which the amount of maintenance would have been reduced.

Applicants must make full disclosure of all material circumstances concerning their financial position. The court will take into account a failure to do so and in particulare any suspision of an attempt to mislead the court in determining whether sufficient reason has been established. Not every alteration in financial or other circumstances will justify a variation in maintenance. Conversely, a change in the Applicant's financial position is not essential before an existing order may be altered.

It is not sufficient to provide details of the income of the parties. The inability to pay must also be shown. The person to whom the maintenance is payable is in entitled to expect some stability of income and be able to plan for the future. If persons liable to pay maintenance have themselves caused the deterioration in their financial circumstances, for instance by entering into a second marriage, the court will be inclined to be less sympathetic. However, the question for "feathering a second nest" is a vexed one. Was was pointed out in Hancock vs Hancock, it might be logical always to refer to prefer the right of the first wife, but this could create hardship, especially in respect of children of the second marriage. The problem arising out of "serial marriages" received the attention of the court in that case. It commented on the fact that the maintenance debtor, with full knowledge of his existing maintenance obligations, entered into a fourth marriage immediately after his third divorce. In applications for variations, divorced men who have remarried often argue that they have to support stepchildren or other relatives by affinity, which they are not by law obliged to do. The courts are not inclined to be sympathetic towards such arguments. In Chizengeni vs Chizengeni reference was made to the apparently conflicting judicial views on the position of the first wife vis-a-vis the husband's new family. It was suggested that the true position is that obligations owed to a first wife and children are properly regarded as a prior charge, but that his subsequent commitments may reduce his ability to pay what was originally ordered. The standard of living of all parties may have to be reduced.

Note, however, that the Maintenance Act now provides as follows:

1. The maintenance court, in determining the amount of maintenance to be paid to a child, must take into consideration that a parent's duty to support a child exists, whether a child is born of a first or subsequent marriage; and
2. as from the commencement of the Act, no legal provisions that a parent's obligations to a child of a first marriage has priority over his or her obligations to another child will any force or effect.

Although the courts generally frown on persons liable to pay maintenance who voluntarily embark on a course of conduct which makes it difficult for them to fulfill their maintenance obligations, no invariable rule can be formulated, and the circumstances of each case must be considered.

It is therefore my view that the husband in this matter can surely approach the maintenance court for a reduction in the maintenance order, due to the facts stipulated above.

In terms of the question that the maintenance does not go to the children, it must first be proved and it will be difficult to prove such allegations. The custodian parent will normally use the maintenance for the upbringing of the children.

It is therefore my humble view that in this matter and the facts to my disposal, that the father or the husband really has a good case to rescind or vary the said maintenance order, because of the fact that the maintenace act is very clear that according to the common law, both parents must support children proportionately according to their means and that was confirmed in the case of Herfst vs Herfst 1964 (4) SA 127 (b).

Bertus Preller
www.divorceattorney.co.za

Reply to Family law expert

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