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Pre-divorce maintenance payments


Court of law's reference to any and all payments and other material support provided to your spouse during your marriage as the precedence on which to set post-divorce maintenance payments.

A male client consulted me and advised me that he was living in America and wanted to institute divorce proceedings in South Africa. There were two minor children born of the marriage. The marriage had been a 20 year marriage, and the children were both in high school. My client had been the primary breadwinner during the course of the marriage. My client had been living in America for the last three years. He had left South Africa as he had found better employment in America.

My client was earning approximately US $15 000 per month in America as an accountant. His wife however was only earning R7 000 per month as a secretary in South Africa. My client had over the last three years been sending most of his income back to South Africa, i.e. US $10 000 per month. My client had now, however met another lady in America and wanted to institute divorce proceedings against his wife in South Africa. One of the questions which he asked me at the consultation was whether this US $10 000 per month would be made a court order when the divorce finally went through. The US $10 000 no doubt far exceeded the reasonable maintenance needs of the minor children. I advised my client that should the matter go to court, the court may well insist on him continuing with these monthly payments. Because he had been making these payments, he had now set the precedent, and if he suddenly wanted to pay a reduced amount in the divorce action, he would have to give good reason as to why he wanted to reduce the maintenance which he had been paying all along prior to the divorce going through.

If a party in a divorce action also suddenly decides to reduce the monthly maintenance payment which he or she has been making, the door is left open to the other party to launch the so-called “Rule 43 Application” against the party who is now paying a lower amount of maintenance. The Rule 43 application is an interim application for maintenance and a contribution towards legal fees. A party who decides to pay a certain amount of maintenance to his or her spouse must therefore always be very careful, as once the precedent has been set of an amount of maintenance, the courts very often stick to that amount when determining maintenance.

Grandparents in a divorce action should also be very careful before paying maintenance towards the minor children in instances where biological parents are struggling financially. If they suddenly decide to stop paying the maintenance, they may well be taken to the maintenance court by one of the biological parents to the divorce action. Their maintenance payments could be construed as an admission of any liability by them to permanently maintain the children.

One must also distinguish between ex-gratia payments and payments which are a party’s legal obligation to make. Ex-gratia payments are payments which are basically made out of generosity, and not as a result of a party’s legal obligation to make such payments. For example, in the case of the client from America, his argument would be that the exorbitant maintenance payments were made ex-gratia and should never have been construed as an admission to permanently send such large amounts of maintenance through to his wife and children.

The mistake that most people make when trying to help out by making ex-gratia payments or paying exorbitant amounts of maintenance is that they fail to realise that this can later be used against them in a divorce trial. Once you make a certain monthly payment, you have to show very good cause as to why you are no longer able to continue with that monthly payment if that is indeed the case. Once the precedent of an amount is set, it is unfortunately very difficult to change in a court of law.

article written by Cape Town divorce attorney, Peter M Baker

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