The attachment of assets of a former partner who has reneged on their obligation of paying maintenance for the upkeep of their former spouse and/or minor children – Burger vs Burger and Another 2006 (4) SA 414.
The Applicant (wife) and First Respondent (ex husband) had divorced on 4 March 1998. On date of divorce there had been two minor children.
In terms of the divorce settlement agreement the lady was awarded custody of the two minor children. They could continue staying at the fixed property, namely 153 Winchelsea Avenue, Bluff, Durban, Kwazulu Natal.
In terms of the agreement, if the property was sold, half of the proceeds of the sale of the house would go to the Applicant’s parents. They had assisted the parties financially with the purchase of the property. The other fifty percent of the equity from the sale would be shared equally between Applicant and First Respondent.
The property had now been sold. The proceeds from the sale were in the trust account of Second Respondent, a firm of attorneys who were attending to the sale of the property.
Applicant and First Respondent were each entitled to R86 773.62 from the sale. However, First Respondent in terms of the divorce order had to pay R500/month maintenance per child and had failed to do so.
Now the Applicant sought an order interdicting the Second Respondent from paying out the First Respondent’s share of the equity to him, as a result of his failure to comply with the court order in respect to his maintenance obligations.
In 2000, First Respondent had resigned from Telkom. Since then he would get temporary employment from time to time. He had paid maintenance whenever he had funds to do so.
The court found that the First Respondent appeared to be hostile to the idea of surrendering the funds from the sale of the house for purposes of maintaining his children. He also appeared not to be overly zealous about finding employment.
The court looked at the Constitution of the country also. Children have rights to “basic nutrition, shelter, basic health care services and social services”. The best interests of the child are of paramount importance.
The court found that First Respondent's unsettled and hostile state of mind as to the purposes for which the funds were to be used, would defeat the children’s claim for maintenance. The result would be similar to one which flowed from an intentional dissipation of funds. That was a circumstance which justified his being restrained from having access to the funds.
The First Respondent’s lumpsum was therefore attached in order to secure his future maintenance payments for the parties’ children. In my opinion the correct decision was made.
Sometimes parties with children do not clearly understand their maintenance obligations. Even though you may not work, if you receive a lumpsum, that money is not yours if you have not paid maintenance and are in arrears. It must be spent on the minor children, whose interests are of paramount importance.
Property clause in divorce settlement