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Suspension of emoluments attachment order

In one of my recent cases I was acting on behalf of the lady. She and her husband had got divorced five months prior to her coming to consult me. The marriage had lasted eight years, and the parties had been married in community of property.

At the time of the divorce action both parties had consulted the same attorney. The parties had signed a settlement agreement, in terms of which my client had been awarded R6000 per month personal maintenance until her death or remarriage. My instructions were that the parties had agreed on this due to the fact that my client had a medical condition which prevented her from working. She had a problem with her bladder.

Subsequent to the divorce being finalized, my client's ex-husband had become violent towards her. My client had also obtained an interim protection order against her ex-husband. My client's ex-husband had now brought an application to court for the suspension of the emoluments attachment order which my client had obtained against her ex-husband subsequent to the divorce.

An emoluments attachment order is an order according to which maintenance can be deducted from somebody's salary by the employer of that person. It is one of the best ways to ensure that maintenance is paid. My client's ex-husband was no longer happy with the maintenance being deducted from his salary, and that is why he had applied to court for suspension of the order.

Suspension of an order for the attachment of emoluments is dealt with in terms of Section 28 (2) of Maintenance Act 99 of 1998. In the application my client's ex-husband asked for an order rescinding the emolument attachment order. He also asked for leave to serve the notice on his ex-wife's parents or in the newspaper, in terms of Section 6(1) (b) of the Maintenance Act. He did not know where his ex-wife was residing at that stage.

The applicant's affidavit annexed to the application stated that the applicant was struggling financially, and could not afford the R6000 maintenance per month which he had agreed to pay in terms of the divorce order. One of his arguments was that his ex- wife had already received a large cash sum in terms of the settlement of the divorce, and that he had to pay quite a few of her medical bills after the divorce.

When the matter was argued out in court, the court did not allow the suspension of the order. The court was of the view that there had been no considerable change in circumstance on the part of applicant since the time the divorce had been granted and the time that he had brought the application for suspension.

The court was also of the view that the applicant had not paid all of the medical bills of my client as he had alleged, and even if he had done so, this could not be set off against her monthly maintenance in terms of the divorce order, as there had been nothing in the divorce order stating that he had to pay her medical expenses.

The court found that one of the reasons why the applicant had been struggling financially was because he had purchased a new motor vehicle, and was paying R5000 per month in instalments towards the vehicle. The court found that the obligation to pay maintenance comes first and foremost before any other debits. My client was therefore successful in opposing the application for suspension of the emoluments attachment order.

This article was written by Cape Town divorce attorney, Peter M Baker

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