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Child maintenance & medical expenses


Child maintenance and medical costs. Jurisdiction of courts when divorce order was issued by a different court. Discharge of maintenance order when a child becomes a major.

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I had a client who came to me with an interesting query. She had been divorced 18 years earlier and had been awarded custody of the minor child. Her ex-husband was back then obligated in terms of the consent paper to pay R600 per month maintenance in respect of the minor child, and to pay the medical expenses of the child. He also had to pay two-thirds of the child’s post-high school study fees.

The matter was taken back to the maintenance court ten months after the divorce, and an order made for him to ay R1300 maintenance in respect of the minor child. The following year a further order was made for maintenance to be paid in the amount of R3000 in respect of the minor.

Three years later (four years prior to her consulting me) my client launched a further application and in terms of the court order, her ex-husband was ordered to pay R1900 maintenance for the minor, being a contribution towards school fees. The court furthermore ordered that he would then continue to retain the minor on the medical aid and that my client would pay the expenses not covered by the medical aid. He also had to pay the study and insurance policy in favour of the minor in terms of this order. My client’s ex-husband also had to pay for the tertiary education of the minor if the minor displayed the right aptitude.

Now, in 2013 (the year my client first consulted me), an application had been launched by my client’s ex-husband for a warrant of execution to be issued. On his papers he averred that my client had not paid for her one-third share of the child’s tuition fees, (the child was in her third year of studying to be a teacher). He claimed that she also owed him R23000 in respect of medical costs not covered by the medical aid.

On her opposing papers my client had argued that the Simonstown Court did not have jurisdiction, as the divorce order had been made by the Cape Town High Court, and the 2009 Order had been made by the Wynberg Court. The court dismissed this argument and found that my client’s ex-husband did not have to pay any maintenance any longer because the major child now lived with him. The court ordered a warrant of execution against the movable property of my client.

The question posed to me by my client was as to whether a maintenance order falls away automatically after a child turns 18 or whether the order must be discharged by a maintenance court. Unfortunately in this situation my answer is that you do have to apply to court to have a maintenance order discharged, even though the child is over the age of 18.

The issue in this matter arose after the major child had turned 21. She was diagnosed with anorexia and her father’s medical aid did not cover everything. In terms of the divorce maintenance order made in 2009, my client would be liable for expenses not covered by the medical aid. The divorce consent paper referred to maintenance being paid until the age of 21 or (the child) becomes self-supporting.

My client stated that the clause compelling her to pay expenses not covered by the medical aid was agreed to in error by her attorney. Unfortunately she agreed to it and she cannot now blame her attorney for the mistake. Court orders are there for a reason and unfortunately my client was in a situation where she owed her ex-husband the money and simply had to make a plan to pay him.

In advising my clients I have to give an honest legal opinion based on the facts of the case. My job is to fight for my clients to the best of my ability but also to give an honest opinion. Even though my client in this case did not have much money, the court order clearly stated that she had to pay.

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