Divorce Attorney Cape Town

Can a wife claim maintenance from her husband when she lives with another man?


The Supreme court of appeal recently gave an interesting judgement in the matter of Harlech-Jones v Harlech-Jones [2012] ZASCA 19. The question raised in this matter was inter alia whether it would be against public policy for a man to pay maintenance to his wife while she is living with another man.

The appellant appealed against an order obliging him to pay R2 000 per month to his wife of almost 29 years, upon dissolution of their marriage. His principal objection against the order lied in the fact that for some eight years prior to the divorce his wife had been cohabiting with another man. This, the husband contended, disentitled her from receiving maintenance from him.

The parties were married out of community of property in December 1972. Two sons, both majors and self-supporting, were born from their marriage. After 28 years of marriage, the husband left the matrimonial home in Port Elizabeth as he had formed a relationship with another woman and had decided on a new life. He purchased another residence in the city, but his new relationship also failed and within six months he had formed an intimate relationship with another man with whom he had cohabitated.

The wife was friendly with a married couple, whom she had come to know some years previously when their sons attended the same school. Shortly after the husband had moved out of the common home, the friend’s wife passed away. When her husband was already cohabiting with his male partner a relationship began to blossom between the wife and her new partner. With the passage of time the relationship became more intimate and the wife moved into the home and bedroom of her new partner, and they thereafter cohabited as man and wife. During the first two years that they had lived together the wife’s youngest son, lived with them as well.

Although the evidence established that when the wife initially moved in with her partner it was regarded as a temporary arrangement, the relationship between them matured over the almost eight years that they had lived together before the trial. By then they both regarded their relationship as permanent and neither had any intention of terminating it. The wife’s partner supported her unconditionally and was prepared to continue to do so indefinitely. By the same token, not only was the wife being maintained by him but she, reciprocally, assisted him in his business, for which he paid her a small gratuity.

Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G; Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O) para10 it was argued, both in the high court and in the appellant’s heads of argument, that it would be against public policy for a woman to be supported by two men at the same time. The court was of the opinion that while there are no doubt members of society who would endorse that view, it rather speaks of values from times past and the court was of the opinion that  in the modern, more liberal (‘enlightened’) age in which we live, public policy demands that a person who cohabits with another should for that reason alone be barred from claiming maintenance from his or her spouse. Each case must be determined by its own facts,and counsel for the husband did not persuade the court to accept that the mere fact that the wife was living with her new partner operated as an automatic bar to her recovering maintenance from the husband.

Under the common law, the reciprocal duty of support existing between spouses, of which the provision of maintenance is an integral part, terminates upon divorce. This might well cause great hardship and inequity particularly where one spouse, during the subsistence of the marriage, has been unable to build up an estate and has reached an age where he or she is unable to realistically earn an adequate income ─ the classical case being that of a woman who has spent what would otherwise have been her active economic years caring for children and running the joint household. This potentially iniquitous situation is alleviated by s 7 of the Divorce Act 70 of 1979. Section 7(1) which provides for a court on granting a decree of divorce to make a written agreement between the parties in regard to the payment of maintenance by one party to another an order of court ─ while in other cases s 7(2) provides:

‘In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

It is trite that the person claiming maintenance must establish a need to be supported. If no such need is established, it would not be ‘just’ as required by this section for a maintenance order to be issued. It is on this issue that the wife’s claim failed. Both she and the husband had moved on with their respective lives and had formed intimate and lasting relationships with others.

The wife was therefore being fully maintained by her new partner in life, and had no need for that maintenance to be supplemented in any way. Accordingly, the respondent’s claimed failed at the first hurdle as she failed to show that she actually required maintenance from the husband.

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Maintenance in a divorce – it is a discretion not a right


The recent case of AV v CV 2011 (6) SA 189 (KZP) is of interest in respect of whether a spouse was entitled to maintenance as of right. The court was of the opinion that awarding spousal maintenance was in the discretion of a court and not a right per se.

This was a matter where the granting of life long maintenance by the court was taken on appeal.  The trial court made an order in the following terms:

  1. ‘That the bonds of marriage subsisting between the plaintiff (present respondent) and the defendant (present appellant) be and are hereby dissolved.
  2. That the defendant be directed to pay maintenance to the plaintiff until her death or remarriage at the rate of R12 000 per month.
  3. That the defendant be directed to retain the plaintiff as a beneficiary on his current hospital plan or any equivalent replacement thereof and to pay the premiums in respect thereof timeously and in full.
  4.  That the defendant be directed to pay all amounts due in respect of the VW Polo 1.9 motor vehicle timeously and in full until the purchase price and all interest thereof has been paid in full.
  5. That the defendant be directed to pay the plaintiff’s costs of suit.’

The appellant appealed against that part of the order contained in par 2, 3, 4 and 5.

 The Facts

The parties were married to each other at Durban on 18 December 1993 in terms of an antenuptial contract, whereby the accrual system was excluded. No children were born of the marriage. This was a second marriage for both parties. The appellant had two children from his previous marriage and the respondent four children. Both parties’ children lived with the couple during the marriage.

During 1995 the marriage relationship became strained largely because of financial difficulties. This led to the parties’ separation in 1997/1998. The respondent left the appellant because she was very unhappy in the marriage. The parties reconciled after a year of separation. The respondent claimed that the parties had always battled financially until she started a new job. In May 2007 the parties were finally separated.

The Law

The court a quo exercised its discretion afforded to it in terms of s 7(2) of the Divorce Act 70 of 1979 (the Divorce Act) and made its findings and delivered its award. Therefore, a court of appeal could only interfere when the court a quo in exercising its discretion misdirected itself or its discretion was not exercised judicially.

On behalf of the appellant it was argued that the court a quo misdirected itself in granting the respondent a permanent maintenance award.

At common law a spouse has no right to maintenance upon divorce. Section 7(2) of the Divorce Act confers discretion upon a court to make a maintenance order which it finds just, having regard to the following factors:

(a)   The existing or prospective means of each of the parties;

(b)   the respective earning capacities of the parties;

(c)   the financial needs and obligations of the parties;

(d)   the age of each of the parties;

(e)   the duration of the marriage;

(f)   the standard of living of the parties prior to the divorce;

(g)   the conduct of the parties insofar as it may be relevant to the breakdown of the marriage;

(h)   any redistribution order made in terms of s 7(3) of the Divorce Act; and

(i)   any other factor which in the opinion of the court should be taken into account.

The authors Hahlo & Sinclair in their book The Reform of the South African Law of Divorce (1980) stated the following at 33:

‘(T)he idea that marriage ought to provide a woman with a ”bread – ticket” for life is on its way out.’ This passage was quoted with approval in Grasso v Grasso where the court stated further at 57H – I:

‘Middle-aged women who have for years devoted themselves full-time to the management and care of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to enable to be trained or re-trained for a job or profession. Permanent maintenance is reserved for the elderly wife who has been married to her husband for a long time and is too old to earn her own living and unlikely to re-marry.’

The court found in this case that the respondent was not entitled to maintenance as of right, but must persuade the court to exercise its discretion in her favour. In doing so, she has to provide a factual basis for a maintenance award to be made before the quantum and duration thereof are determined by the court.

In Grasso supra the court, having regard to the duration of the marriage, ie 15 years, and the fact that the plaintiff had not worked for most of the marriage and was not working at the time of the divorce, awarded maintenance to the plaintiff. The court also took into account the conduct of the defendant (husband), which was regarded as ‘gross misconduct’ and which ‘must inevitably play no small part in deciding whether or not he should be ordered to pay maintenance to the plaintiff.

In Rousalis v Rousalis, the court stated at 450G – H:

‘A wife of long standing who has assisted her husband materially in building up his separate estate would in my view in justice be entitled to far more by way of maintenance, in terms of this section, than one who did no more for a few years than share his bed and keep his house.’

In Kroon v Kroon, the court found that, having regard to the duration of the marriage, ie 20 years, during which the plaintiff (wife) did not work in the open market but fulfilled the role of housewife and mother, she should be awarded maintenance. However, the court stated at 632F – G that:

‘(T)he Courts do not today distribute maintenance with any degree of  liberality to women who can and ought to work after divorce.’

In the matter of Robert v Robert (DCLD case No 933/2002, 10 March 2003), an unreported judgment, Gyanda J declined to award maintenance to a spouse who was unemployed at the time of divorce on the basis that the marriage lasted only five years, although the plaintiff was no longer a young person to be readily employed. It was a second marriage, and the period during which she enjoyed maintenance in terms of rule 43 had been sufficient to constitute rehabilitative maintenance.

In McCarthy v McCarthy (CPD case No 5570/2003, 15 December 2004), an unreported judgment, the issue in dispute was not whether the wife was entitled to maintenance or not, but the amount and period of such maintenance. The parties were married for 25 years and two children were born into the marriage. The wife had not been employed since 1981. She, however, obtained a BA degree after ceasing employment. The court found that there was no fault to be attributed to either of them in causing the marriage relationship to disintegrate. The court ordered rehabilitative maintenance.

In the case related to this article the parties were married to each other for 15½ years. No children were born of the marriage. It was the second marriage for both the appellant and the respondent. The appellant had two children and the respondent had four, all from previous relationships. At the date of divorce the respondent was 54 years old and was employed earning a monthly net salary of R7980. Her highest level of qualification is Grade 10. She had completed an informal typing course. She was also computer-literate.

The conduct of the parties is undoubtedly a relevant factor to be considered in determining a claim for maintenance in terms of s 7(2) of the Divorce Act. The marriage was of some duration. The reasons given by the respondent for the breakdown of the relationship are trivial. The Langebaan incident and the issues that the appellant had with her children cannot be regarded as ‘gross misconduct’ on the part of the appellant. The difficulties which the appellant and the respondent experienced in accommodating children born of marriages with other parties, within their marriage, coupled with the fact that the parties battled financially, may have placed a strain on their marriage.

The court in Beaumont, referred to the clean-break principle at 993B – F and stated:

‘(O)ur Courts will always bear in mind the possibility of using their powers under the new dispensation in such a way as to achieve a complete termination of the financial dependence of the one party on the other, if the circumstances permit. The last-mentioned qualification is, of course, very important; I shall return to it in a moment. The advantages of achieving a clean break between the parties are obvious; I do not think they need be elaborated upon. The manner of achieving such a result is, of course, by making only a redistribution order in terms of ss (3) and no maintenance order in terms of ss (2). What I have said earlier with regard to the Court taking an overall view, from the outset, of the possibility of making an order or orders under either ss (2) or ss (3) or both, does not mean that the Court will not consider specifically the desirability in any case of making only a redistribution order and awarding no maintenance, having regard particularly to the feasibility of following such a course. With regard to the latter and to the qualification I stressed a moment ago (if the circumstances permit), there will no doubt be many cases in which the constraints imposed by the facts (the financial position of the parties, their respective means, obligations and needs, and other relevant factors) will not allow justice to be done between the parties by effecting a final termination of the financial dependence of the one on the other. In the end everything will depend on the facts and the Court’s assessment of what would be just.’

In the case related to this article the respondent was 54 years old and the appellant is 53 years old. They have been married for 15 ½ years. The respondent was still employed and was computer-literate. In the court’s view the parties had to be allowed to get on with their lives and the appellant had to be relieved of his obligation to maintain two households. This was not a case where the appellant is able to afford and therefore he must maintain. The parties had come to a point in their lives that there should eventually be a ‘clean break’ between them.

Regarding the uncertainty as to what the future holds and the respondent’s prospects of continuing in her employment after reaching 60 years, the court in Beaumont supra stated at 995G – I:

‘Both parties will inevitably suffer hardship because of the parting of their ways. In relation to the areas of uncertainty it is impossible to assess accurately the relative degrees of hardship which each of the parties will suffer, depending upon what assumptions are to be made. Where choices are to be made and decisions to be taken in the dark, as it were, and where the areas of uncertainty are not due to any remissness on the part of the respondent to place available information before the Court, it would be fair, because of the appellant’s misconduct, to allow the scales of justice to be tipped in favour of the respondent and against the appellant, rather than the reverse.’

Section 7(2) of the Divorce Act states that in exercising its discretion, the court has to take any other factor into consideration in making a maintenance order. This includes the misconduct of the parties.

The assets of the respondent amounted to R301 331 as compared to the appellant’s assets of R155 356. The respondent conceded that her assets were more that the applicant’s. The court was of the view that if the respondent can cut her cloth according to her size, she was able to maintain herself on her assets and means.

In awarding maintenance to the respondent, the court a quo compared the present case to Rowe v Rowe (DCLD case No 6166/01), an unreported decision, where the wife, 58 years old, had no formal qualifications and was employed as a receptionist. She had not worked during the duration of the marriage. She was awarded open-ended maintenance. The court in the matter related to this article found the two cases to be distinguishable. Unlike in Rowe the respondent was computer-literate and was employed. In relation to the uncertainty of whether she was be able to continue in her employment after reaching 60 years, ‘it was impossible to assess accurately the relative degrees of hardship which each of the parties would suffer’. To find that she cannot be rehabilitated to become self-supporting was in the court’s view, a misdirection.

The court dismissed the wife’s claim to maintenance.

Divorce – will your standard of living determine your maintenance? – The Van Der Westhuizen Case



Divorce – will your standard of living determine your maintenance?

Van Der Westhuizen v Van Der Westhuizen [2011] ZAGPPHC 30

 The facts

In a counterclaim during their divorce trial, the wife, claimed maintenance in the amount of R 68 794 per month. She also claimed a resettlement allowance of R3 million alternatively an order directing  Mr. Van Der Westhuizen to contribute to the cost of  her accommodation in the sum of R25 000 per month, escalating at 10 % per annum, plus an order that he pay to her the sum of R500 000 to enable the her to purchase the necessary furniture and household appliances for the her new accommodation. At the commencement of the hearing her counsel informed the court that she seeked only an order that her husband pay maintenance her in the sum of R44 502, alternatively, R42 102 per month and the sum of R500 000 to enable her to purchase the necessary furniture and household appliances for her new home.

The following issues had to be decided by the court:

  • whether the husband should be ordered to pay maintenance to the his wife; and if so;
  • what amount is to be paid to enable the wife to purchase household necessaries in order to establish a new home; and
  • what amount is to be paid to the wife in equal monthly payments to enable her to support herself.

For about 15 years of the marriage Mr. and Mrs. Van Der Westhuizen lived in two very large luxurious houses in the affluent suburb of Waterkloof, Pretoria. These houses had just about every conceivable facility and no expense was spared in the design and finishes of the houses and the interior decorating. They were also accustomed to dining out at least two to three times a week, usually at Italian restaurants or steakhouses. The couple also traveled overseas once a year and when they did flew business class. They also had a month holiday at the sea every Christmas. The husband owned a luxurious seaside home at Port Alfred where the members of the family would get together.

During the trial the wife listed the events under which it was assumed that her husband committed adultery with a certain Mrs. de Beer. Her husband had also paid R28 000 for Mrs. de Beer to have a breast augmentation procedure performed and despite his denials that he was involved in a relationship with her prior to 15 November 2008 the most plausible probable inference was that he was involved with her. Apart from paying for the breast augmentation procedure for Mrs. De Beer Mr Van Der Westhuzen insisted that this be kept from his wife. Mrs. Van Der Westhuizen was prepared to forgive her husband and to continue with the marriage despite his adultery and despite the fact that he was in a relationship with another woman.

 The Law

When a court has to make an order for spousal maintenance by the one party to the other, the court may take into account the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to divorce, their conduct insofar as it may be relevant to the break-down of the marriage and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given.

In terms of section 7(2) of the Divorce Act the trial court has very a wide discretion to determine the question of  spousal maintenance requirements – see Beaumont v Beaumont 1987 (1) SA 967 (A) at 987E; Katz v Katz 1989 (3) SA 1 (A) at 11A-C and Swiegelaar v Swiegelaar 2001 (1) SA 1208 (SCA).  The court is not only limited to make an order for equal monthly instalments. The court may also order payment of an initial amount to enable a party to purchase household necessaries to establish a new home – see Swiegelaar v Swiegelaar supra paras 12-15. The court must conclude that in the light of all the relevant factors (i.e. those specified in the subsection as well as any other which, in the opinion of the court, should be taken into account) it is just for the order to be made – see Buttner v Buttner 2006 (3) SA 23 (SCA).

Before the commencement of the Divorce Act it was said that no maintenance will be awarded to a wife who is able to maintain herself and that a wife cannot expect to enjoy, after divorce, the same standard of living that she had as a married person. However it is clear from the factors enumerated in section 7(2) and the wide discretion which is conferred on the trial court that it is not bound to refuse a wife’s claim for maintenance simply because she can support herself – see Nilsson v Nilsson 1984 (2) SA 294 (C) ; Rousalis v Rousalis 1980 (3) SA 446 (C); Grasso v Grasso 1987 (1) SA 48 (C); Pommerel v Pommerel 1990 (1) SA 998 (E) and that the court may award her maintenance that will give her the same standard of living. It will always depend on the facts and circumstances and what the court considers to be just in the light of these facts and circumstances. In this regard it is significant that the factors to be taken into account are not listed in any order of importance and that there is no indication of the weight to be attached to each of these factors. The court is free to have regard to any other factor which, in its opinion, ought to be taken into account in coming to a just decision.

The court ordered Mr. Van Der Westhuizen to pay R 35 000 per month and R 275 601 within 10 days of the order

A party in pending divorce proceedings is also able to claim interim maintenance pending the divorce by way of Rule 43 of the High Court Rules. In addition to claiming maintenance the application can also be used  to protect a party who doesn’t see his or her children as much as he or she wants. In the Rule 43 you can ask the court for an order entitling you to spend more time with your children and be awarded more contact rights to your children than you are currently being allowed.

In 2010 this came up in another divorce matter in the divorce of an ex South African rugby player Joost Van Der Westhuizen  and well known singer Amor Vittone. Her husband was seeking more contact to his children and a Rule 43 application was brought to court for this.

According to media reports in the You magazine of 28 October 2010, him and Vittone had not lived together as husband and wife for 18 months.  Accordingly You reported that,  Van Der Westhuizen had his minor children with him every second weekend, and also often had them with him in the afternoons when he fetched them from school and then dropped them off afterwards at their residence with their mother. Van Der Westhuizen approached the court to vary the  arrangements and wanted more contact to the children. According to the reports, his spouse contended that the contact  exercised was sufficient.

Spousal Maintenance in a Divorce


Maintenance of spouses in divorce

There are basically two options regarding spousal maintenance:

  • Where there is an agreement between the parties
  • Where there is no agreement but where the court makes an order for spousal maintenance

Where the parties agree on the maintenance

Parties in a divorce may enter into a settlement agreement regarding the maintenance that the once spouse will pay to the other. Where the parties only reach an informal agreement without making their agreement an order of court, the agreement remains unenforceable.

Maintenance order in the absence of an agreement

In terms of section 7(2) of the Divorce Act, a court may make a maintenance order in the absence of a written agreement between the parties. Such an order can apply until death or remarriage. The basic principal that will apply is that the party who applies for maintenance must show a need for it and the party against whom the order is made must be able to provide for it.

The court will consider a wide range of factors when it decides on giving the other party maintenance and in section 7(2) of the Divorce Act various factors should be taken into account, these are:

  • The existing and prospective means of the parties
  • The respective earning capacities of the parties
  • The financial needs and obligations of the parties
  • The age of each party
  • The duration of the marriage
  • The standard of living of the parties prior to the divorce
  • The conduct of each of the parties in relation to the breakdown of the marriage
  • Any order in terms of section 7(3) of the Divorce Act (a redistribution order)
  • Any other factor that the court may take into consideration

There are basically three types of maintenance orders:

  • Rehabilitative Maintenance – Where a maintenance order applies for a specific period of time, it is called a rehabilitative maintenance order. This is normally awarded to younger or middle-aged women who have for years devoted themselves to the upbringing of the children and who were full time involved in the household. The purpose of this kind of maintenance is to tie them over to be trained or retrained to find suitable employment.
  • Permanent Maintenance – The court may award lifelong maintenance to a woman that is too old to find a job.
  • Token Maintenance – Token maintenance is an order for a minimal amount. The court will make such an order if there is no reason to grant maintenance at the time of the divorce, but foresees that the spouse may in future need maintenance. The court would then be able to increase the amount in future should the need arise.

It is clear from the wording of section 7 (2) of the Divorce Act that a maintenance order can be made against a husband or a wife. It is also important to note that a court may not consider all the factors listed above before it makes a maintenance order and that a party is not as of right entitled to maintenance.  The factors are not exhausted and one does not have preference over the other. Therefore each case must be considered on its own merits in light of the circumstances and facts peculiar to it and with regard to those factors set out in the Divorce Act.

About the Author

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Maintenance and Child Support in South Africa


Maintenance and Child Support in South Africa

Every magistrate’s court in South Africa is within its area of jurisdiction a maintenance court for purposes of the Maintenance Act 99 of 1998.

Any party to the proceedings under the Maintenance Act may be represented by a legal representative.

Lodging your complaint

To commence proceedings in an application for maintenance or an application for the substitution or discharge of an existing maintenance order, the applicant (or complainant as he is called in the Maintenance Act) must lodge a complaint in writing with the maintenance officer at the maintenance court, to the effect that

  • the person legally liable to maintain the complainant or person (for example, dependent child) on whose behalf maintenance is claimed is failing to do so; or
  • good cause or reason exists for the substitution (increase or decrease) or discharge of an existing maintenance order.

Applying for a maintenance order

In the first instance the complaint must be made in form A of the Annexure to the Maintenance Regulations (GN R1361/15-11-1999). The complainant must state in the complaint the reason why the person from whom maintenance is claimed is legally liable to maintain the person in respect of whom maintenance is claimed. The following people have reciprocal duties to maintain each other:

Parents & children

Both parents of a child have a duty to maintain the child according to their respective means. The duty exists irrespective of whether the child is adopted, born in or out of wedlock, or born of the first or a subsequent marriage.

When the court makes an order in respect of the maintenance of a child it will take into account inter alia

  • what the reasonable maintenance needs of the child are;
  • that both parents jointly have a duty to support a child; and
  • that the parents’ respective shares of their obligation are apportioned between them according to their means.

Husband & wife

At common law this duty comes to an end on divorce. However, in terms of the Divorce Act 70 of 1979, the court granting the decree of divorce may make an order directing one spouse to pay maintenance to the other spouse after divorce, either by agreement between the parties or, in the absence of such an agreement, after taking into account various factors set out in s 7(2) of the Divorce Act. If no such order was granted at the time of the divorce, the divorcé cannot at a later stage approach the maintenance court for an order directing his ex-spouse to pay him maintenance. However, if such an order was granted by the divorce court, the divorcé may approach the maintenance court at a later stage to apply for a substitution (increase or decrease) or the discharge of the existing order, provided that good cause exists for such a substitution or discharge.

Application for substitution or discharge

In the second instance, ie where application is made for the substitution or discharge of an existing maintenance order, the complaint must be made in form B of the annexure to the Regulations Relating to Maintenance (GN R1361/15-11-1999). The complainant must state the alleged reason or cause on which he relies for such substitution or discharge of the maintenance order.

In both instances, ie when application is made for a maintenance order or for the substitution or discharge of an existing order, the complainant must provide full details of his assets, income and the monthly expenditure in respect of himself and the children on whose behalf maintenance is claimed, supported by documentary proof. This information must be attested to under oath. Form A and form B to the Regulations Relating to Maintenance contain all the necessary information, including a comprehensive list of monthly expenses. The attorney should assist his client to complete the relevant form in full to avoid the matter being referred back to the complainant for further information, which will result in delay. Once the relevant form has been completed, it must be handed to the maintenance officer at the maintenance court who will issue a reference number for the particular matter.

The investigation

Once the complaint has been lodged with the maintenance officer, the latter will investigate the complaint. For purposes of the investigation, the maintenance officer may subpoena both the complainant and the defendant to appear before him on a date and time mentioned in the subpoena and to provide, inter alia, information regarding the financial position of the people affected by the application. In practice, to save costs, a subpoena is normally served on the defendant only, whereas the complainant receives mere written notification of the date and time of the investigation.

The investigation affords the parties’ attorneys the opportunity to exchange information regarding the maintenance needs of the people in respect of whom maintenance is claimed and the financial position of the parties. Settlement negotiations often take place at the informal inquiry. The normal rules relating to discovery do not apply in the maintenance court. The attorney should, therefore, at the investigation make use of the opportunity to obtain as much information as possible from the opposing party, necessary for the preparation of the inquiry (trial). It is advisable that a list of the documents and information required for purposes of such preparation be prepared in advance and handed to the opponent at the investigation. The magistrate may be requested to warn the party requested to furnish the information and documents, within a certain period of time.

The inquiry

After the maintenance officer has investigated the complaint he may institute a formal inquiry, which is in effect a maintenance trial before a magistrate of the maintenance court. A date for the inquiry must be arranged with the maintenance officer and magistrate. The magistrate will warn both parties to be present at the inquiry.

The maintenance officer may subpoena any person to appear before the maintenance court on the day of the inquiry and to give evidence under oath or affirmation, or to produce any book, document or statement relating to the financial position of any party affected by the legal liability of a person to maintain any other person. This includes full particulars of the person’s earnings signed by his employer. If the attorney of any of the parties to the proceedings requires a person to be subpoenaed to give evidence regarding the financial position of either of the parties or to produce a book, document or statement as referred to above, he should approach the maintenance officer and request that a subpoena be issued in respect of such a person.

At the maintenance inquiry the court may also examine any person who is present at the inquiry although he was not subpoenaed as a witness, and may recall and re-examine any person already examined.

The normal rules of evidence applicable in respect of civil proceedings in the magistrate’s court apply in respect of the inquiry.

At the inquiry documentary evidence in the form of a statement in writing by any person other than the person against whom a maintenance order may be made may be placed before the court as evidence, provided that a copy of the statement together with any documents referred to in the statement are served on the person against whom a maintenance order may be made at least 14 days before the date on which the statement is to be submitted as evidence. Such person may then, at least seven days before the commencement of the inquiry, object to the statement being submitted as evidence.

It is important to note that the maintenance court may take into account any evidence in any proceedings in respect of the existing maintenance order or accept as prima facie proof any finding of fact in any such proceedings. In other words, evidence led and findings of fact in a divorce action may at a later stage be used in proceedings in the maintenance court. The record of such evidence or findings shall on its production at the inquiry be admissible as evidence, and so will any copy or transcription or extract from it certified as a true copy, transcription or extract by the registrar or clerk of the court or any other officer having custody of the records of the court where the existing maintenance order in question was issued.

After consideration of the evidence at the inquiry the maintenance court may decide as follows:

  • Where no maintenance order is in force, the court may make a maintenance order against the person proved to be legally liable to maintain the person in respect of whom maintenance was claimed. The court may be requested to order that the maintenance be paid in at the maintenance court where the complainant will then have to collect the payments from month to month, or that the maintenance be paid into an account at a financial institution by stop order or in another manner.
  • Where no maintenance order is in force the court may also make an order, in the case where maintenance is to be paid in respect of a child, for the payment to the mother of the child of such sum of money together with interest thereon, as the mother is in the opinion of the maintenance court entitled to recover from the person in respect of expenses incurred by the mother in connection with the birth of the child and expenditure incurred by the mother in connection with the maintenance of the child from the date of the child’s birth to the date of the inquiry.
  • Where there is already a maintenance order in force, the court may substitute the existing maintenance order with a new order or discharge the existing maintenance order, or the court may make no order.

Maintenance orders by consent

A maintenance order may also be obtained by consent.

The person against whom the maintenance order is sought must consent in writing to the maintenance order being granted. A copy of the written consent must be handed to the maintenance officer at the inquiry. Where such written consent has been obtained it is not necessary for the person against whom the order is to be made to appear in court at the inquiry. An example of such written consent can be found in part A of form G of the annexure to the Maintenance Regulations. A copy of the order made against the person not present at the inquiry must be delivered or tendered to him by a maintenance officer, police officer, sheriff or maintenance investigator. The return of any such officer, sheriff or investigator showing that a copy was delivered or tendered to the person shall be sufficient proof of the fact that he is aware of the terms of the order.

Maintenance orders by default

A maintenance order may also be obtained by default.

If the person against whom a maintenance order is sought does not appear in court on the date and time mentioned in the subpoena issued for his attendance at the inquiry to give evidence or for the production of a book, document or statement, the complainant may apply to court for an order by default. This application may be brought through the maintenance officer on the date of the inquiry.

The court must be satisfied that the person against whom the order by default is sought has knowledge of the subpoena issued for his attendance at the inquiry and/or to produce any book, document or statement at the inquiry. The return by a maintenance officer, police officer, sheriff or maintenance investigator showing that the subpoena was served on such person will be sufficient proof that he has knowledge of the fact that he had to attend court or that he had to produce a book, document or statement, as the case may be.

The court may request the complainant to adduce evidence in writing or orally, in support of his complaint, before an order by default is granted.

A copy of the order by default must be delivered or tendered to the person against whom the order was granted, by any maintenance officer, sheriff, police officer or maintenance investigator. The return by such officer, sheriff or investigator showing that a copy was delivered or tendered to such person will be sufficient proof that he is aware of the terms of the order.

The person against whom the order by default was granted may apply to the maintenance court for the variation or setting aside of the order within 20 days after the day on which the person became aware of the order by default or within such further period as the maintenance court on good cause shown shall allow. Notice of an application to set aside an order granted by default must be given to the person who lodged the complaint at least 14 days before the day on which the application is to be heard.

Appeal

Any person not satisfied with the order made by the maintenance court may appeal against such order to the High Court having jurisdiction.

Enforcement

When a person against whom a maintenance order has been made fails to comply with the terms of the order, and the order remains unsatisfied for a period of ten days, the person in whose favour the order was made may apply to the maintenance court where the person against whom the order was made is resident, for authorisation to issue a warrant of execution or for an order for the attachment of emoluments or for an order for the attachment of debt.

An order for the attachment of emoluments may also, on application by the complainant, be granted in respect of future monthly maintenance payments. The effect of such an order is that the defendant’s employer will be directed to deduct the amount mentioned in the order monthly from the defendant’s salary and to pay such amount to the complainant on behalf of the defendant.

Warrant of execution

The warrant of execution must substantially correspond with form L of the annexure to the Maintenance Regulations and must be prepared in triplicate.

The complainant must prepare part A of form L and thereafter the form must be lodged in triplicate with the clerk of the maintenance court concerned, who will issue the warrant of execution by preparing part B of form L of the annexure, provided that he is satisfied that

  • authorisation for the issuing of a warrant of execution was granted; and
  • the warrant of execution has been properly prepared;
  • The clerk of the maintenance court will, after the warrant of execution has been issued,
  • return the original warrant of execution and one copy to the complainant; and
  • file the second copy of the warrant of execution in the relevant court file.

The original warrant and a copy must be handed to the sheriff or maintenance investigator for execution. Such person shall complete part C and, if applicable, part D of form L of the annexure and return the form to the clerk of the maintenance court, once the warrant has been executed.

The person against whom a warrant of execution had been issued may apply to the maintenance court concerned to have the warrant of execution set aside or suspended, by giving notice of his intention to make the application to the person in whose favour the maintenance order was made at least 14 days prior to the date on which the application is to be heard. The court may at the hearing of the application request either or both parties to adduce evidence in writing or orally, as the court considers necessary.

The court may, when suspending a warrant of execution, grant an order for the attachment of emoluments or the attachment of debt.

Attachment of emoluments

The complainant may request the maintenance court to make an order for the attachment of any emoluments at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover the amount such person has failed to pay, together with interest thereon as well as the costs of the attachment. This order will authorise the employer of the person who failed to comply with the maintenance order to deduct from that person’s emoluments and to pay on that person’s behalf the amount specified in the order until the amount due, plus interest and costs, has been paid in full.

To give effect to the order for attachment of emoluments, the maintenance officer shall within seven days after the order was granted cause a notice with a copy of the order to be served on the employer of the person against whom the order was granted. The notice to the employer must substantially correspond with part A of form O of the annexure to the Maintenance Regulations.

An order for attachment of emoluments may, on application by the person against whom such order was granted, be suspended, amended or rescinded. Notice of such application must be given to the person in whose favour the maintenance order was made at least 14 days prior to the date on which the application is to be heard. The application must substantially correspond with part A of form N of the annexure to the Maintenance Regulations whereas the notice must substantially correspond with part B of the form.

Attachment of debt

The maintenance court may on application by the person in whose favour a maintenance order was made, or when it suspends a warrant of execution, make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover the amount which the creditor failed to pay, together with interest thereon as well as the costs of the attachment. This order will direct the person who has incurred the obligation to make the payment specified in the order.

As in the case of the attachment of emoluments, an order for the attachment of debt may, on application by the person against whom the order was granted, be suspended, amended or rescinded. Notice of such application must be given to the person in whose favour the maintenance order was made at least 14 days prior to the date on which the application is to be heard. The application must substantially comply with part A of form P of the annexure to the Maintenance Regulations, whereas the notice must substantially correspond with part B of the form.

Compiled by Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.
http://www.divorceattorney.co.za

info@divorceattorney.co.za

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