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Failure to pay maintenance - latest case law

Failure to pay maintenance is seen to be a crime.A recent decision in the Krugersdorp magistrate's court confirmed this and after a divorce the man was sentenced to six years in prison for failure to adhere to the terms of the divorce order relating to the provisions of maintenance as agreed on between the parties.

In the aforementioned case,the ex-husband owed his ex-wife more than one million rand in respect of arrears in maintenance.The parties had met in 1990,and their divorce was finalised in 2012.The wife was of the view and believed that her husband was having an affair.The husband filed for divorce initially and, within a year after the divorce was finalised, he stopped paying maintenace and signed over some of his assets to his new partner.

The presiding magistrate in this case was Abdul Khan,who in his judgment stated that the the ex-husband had done everything within his power to ensure that his ex-wife got nothing.The magistrate found also that the ex-husband went out of his way to defeat the ends of justice,and that he had knowingly caused the mother of his children pain and suffering with his failure to pay spousal and child maintenance.Maintenance was awarded to the ex-wife in respect of the two children born of the marriage,as well as in respect of her in her personal capacity,as is often the case particularly after a long marrige where the party in favour of whom maintenance is awarded has made a direct or indirect contribution to the growth in assets or the earning capacity of his or her spouse.This contribution could be for example by directly contributing financially by working, or indirectly by staying at home, and looking after the home and children while the other party goes out to work and takes on the role of provider.

Eighteen months of the six year sentence was suspended and the ex-wife was authorized to attach assets to the value of over R1,2 million.She was also awarded interest and costs.The court will always make a costs order in a matter of this nature.This would mean that the ex-husband would be liable to pay all the legal costs incurred by his ex-wife,who is the successful party.These costs would include all of her attoney's fees and advocate's fees,which no doubt would be substantial,when one considers the lengthy nature of the matter.

In terms of the Maintenance Act you can successfully apply to court for a maintenance order to be varied if you can prove a change in circumstance.If after the divorce is granted or a maintenance order is made in the maintenance court, you can no longer afford to pay the maintenance which you have been ordered by a court to pay, because for example you have lost your employment,you must launch an application to have the order changed.You may not by law merely refuse to pay,or pay less,of your own accord,The correct procedure has to be followed to have the order varied.If the correct procedure is not followed,you can be incarcerated.That is how seriously the courts consider the failure to pay maintenance.To open up a criminal case for failure to pay maintenance, one must approach the state prosecutor,who will start the criminal case.This may be the best option to begin with,as the defaulting party may fear the loss of freedom should he or she be incarcerated,and he or she may then more readily pay what is owing.

In terms of civil law, if there is a failure to pay maintenance, one can apply to court for an order attaching the assets of the defaulting party.You can also apply for a so-called "emoluments attachment order",where the employer of the defaulting party will on a mothly basis automatically deduct a certain amount from the salary of the defaulting party until the arrears is paid in full, and/or the full monthly maintenance is paid to the party in favour of whom maintenance is awarded.The emoluments attachment order is a good option, as it involves a third party,being the employer,being directly involved in ensuring that maintenance and/or arrears gets paid timeously.

The decision made by Abdul Khan in the abovementioned case is a decision of the magistrate's court,and does not have to be followed by presiding officials in similar matters. However it may well be referred to in other cases,and the courts in other cases may well use the abovementioned decision in reaching a decision.From the abovementioned case it is clear that the courts will these days bend over backwards to protect a party in whose favour maintenance has been awarded.The decision may well serve to scare off parties from failing to pay maintenance.

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