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Divorce & inheritance

I am going through a divorce. My wife inherited money. How relevant is this in working out maintenance?

A client consulted me recently for a divorce. His wife had moved out of the matrimonial home and begun an extra-marital affair with another man. The two children stayed with the man as agreed between the parties. The parties agreed that it would be best not to uproot the two children, who were both in high school, from the family home.

My client earned about twice as much as his wife. He earned a net salary of approximately twenty thousand rand, while his wife earned a net salary of approximately ten thousand rand. She was renting a flat and with all her additional expenses, and could not really afford to pay maintenance for the two children.

My client however informed me that since his wife had moved out, she had inherited two hundred thousand rand from her deceased father. He asked me if this could be used to assist her in paying maintenance for the two children.

The general rule with inheritance is that only the party who inherits is entitled to that money, unless the will of the testator or testatrix stipulates otherwise. South African law follows the principle of freedom of testation and anybody is free to leave their assets to whoever they choose.

However, if a person who inherits money has a duty to pay maintenance for the children, and does not earn much money, it simply has to be taken into account that they do have funds to pay maintenance. Even though that money was inherited, they have to use it to pay maintenance if it is the only way they can afford to pay maintenance.

I often hear men in divorces mentioning that their wife is due to receive a huge amount of inheritance, and that they should have to pay less maintenance as a result hereof. This argument does not stand usually, as a will can be changed at any time.

A potential inheritance of a spouse in the future does not have any effect on a current duty to pay maintenance. However, if somebody has inherited money already, this could be relevant for purposes of maintenance.

In South African law maintenance depends on so many different variables. As a general rule a person is meant to pay anything up to one third of their net salary on maintenance. However, this also depends on various factors.

When people inherit money and they have children, the inheritance should be invested or used for the best interests of the children. So many people squander inheritance these days on fancy holidays and motor vehicles while they have a duty to mantain their children. One spouse never has a claim against the other spouse for money inherited, unless there are children involved and maintenance needs to be paid.

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