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Question
Posted by: TPE | 2010-01-20

Please help me

I need some advice. There is a high court order and settlement that states he is responsible for the school fees and all school related expences. He also pays R200 per child per month. Ever since I have been divorced (3 years) my ex husband only paid school fees when he felt like it. The schools were understanding but there are around R15000.00 school fees outstanding to present. We have 3 children - one with special needs. He lied and told me in July 2009 that he was retrenched, but later admitted that he resigned because he wanted to start " his own thing" . From July 2009 he hasn' t paid a cent towards maintenance or any other school expences. I really can' t pay for everything alone. He claims that things didn' t work out and he doesn' t have a job. I work in HR and could get him a job, but he refused this. He stays with his girlfriend (for 1 year) and he doesn' t want to see his children or even phone them (last time he saw them was September 2009). What are my options as he claims that everything is his girlfriends property and he doesn' t own anything. Can he get away with this and just not work in order to avoid paying maintenance? When I phoned our local maintenance court the gentleman said that I can come in, but if he isn' t working there isn' t anything that they can do....

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Our expert says:
Expert ImageFamily law expert

Hi TPE,

You should lodge a complaint with your local maintenance court so that it can be established whether your ex is indeed not earning an income. A maintenance officer will investigate the complaint and may institute an enquiry in the maintenance court area in which your spouse resides. If your complaint is justified, the maintenance officer will require your spouse to appear before a magistrate. After considering the evidence, the court will make an order as it deems fit.

A person who fails to make a payment in accordance with a court or maintenance order is guilty of an offence and liable on conviction to a fine or to imprisonment or to imprisonment without the option of a fine unless the defence that failure to make a payment in terms of a maintenance order is because of lack of means. Your are entitled to lay a criminal charge against your spouse if he fails to adhere to the terms of the decree of divorce or any order made by a maintenance court. Although this step will likely result in your spouse's being arrested it will not necessarily result in your receiving payment. But on a practical level, however, if your spouse is arrested and he immediately pays all the arrears it is more than likely that the state will drop the charge so this is yet another lever that you have to exert pressure to obtain payment.Even if the defaulting person is unemployed, he/she is still legally obliged to pay
maintenance, although the amount is changed according to the person’s means. However, if a person proves that he/she has no means to pay maintenance and that it is not due to unwillingness to work or wrongdoing on his/her behalf, then a court will not enforce a maintenance order.

For more information on maintenance go to: http://www.edivorce.co.za/maintenance-Manual.php

Bertus Preller
bertus(@)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.

1
Our users say:
Posted by: Family law expert | 2010-01-20

Hi TPE,

You should lodge a complaint with your local maintenance court so that it can be established whether your ex is indeed not earning an income. A maintenance officer will investigate the complaint and may institute an enquiry in the maintenance court area in which your spouse resides. If your complaint is justified, the maintenance officer will require your spouse to appear before a magistrate. After considering the evidence, the court will make an order as it deems fit.

A person who fails to make a payment in accordance with a court or maintenance order is guilty of an offence and liable on conviction to a fine or to imprisonment or to imprisonment without the option of a fine unless the defence that failure to make a payment in terms of a maintenance order is because of lack of means. Your are entitled to lay a criminal charge against your spouse if he fails to adhere to the terms of the decree of divorce or any order made by a maintenance court. Although this step will likely result in your spouse's being arrested it will not necessarily result in your receiving payment. But on a practical level, however, if your spouse is arrested and he immediately pays all the arrears it is more than likely that the state will drop the charge so this is yet another lever that you have to exert pressure to obtain payment.Even if the defaulting person is unemployed, he/she is still legally obliged to pay
maintenance, although the amount is changed according to the person’s means. However, if a person proves that he/she has no means to pay maintenance and that it is not due to unwillingness to work or wrongdoing on his/her behalf, then a court will not enforce a maintenance order.

For more information on maintenance go to: http://www.edivorce.co.za/maintenance-Manual.php

Bertus Preller
bertus(@)divorceattorney.co.za

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