Maintenance obligations based on a Court Order | Covid-19

 In Articles, Divorce, Child and Family Law

Covid-19 continues to have a wide-reaching financial impact upon South Africans, particularly for people whose maintenance obligations are based on a court order. As more and more jobs and organisations are impacted by the Covid19 pandemic, many people have been forced to take unpaid leave, receive pay-cuts and retrenchment packages, and some have even been made redundant or their businesses has gone into liquidation.

If you find yourself in the situation of your normal income having been significantly reduced for reasons beyond your control, you may need to know how the situation will affect your maintenance payments.

It is important to understand the parameters of your maintenance obligations based on the court order so that you can remain compliant. However, if you are unable to comply with the court order to the extent that it requires then you need to consult with the maintenance creditor. You need to advise them that your financial circumstances have changed and, as a result, the maintenance amounts that you are liable for will need to be revised. You may be able to work together to reach a temporary agreement in order to curb the costs of potential litigation. If an agreement cannot be reached then you, as the maintenance debtor, would need to approach the High Court or the Maintenance Court to apply for a variation of the court order.

There are several options available to the court in these circumstances, for example, the court may make an order for the maintenance to be reduced, temporarily reduced, suspended or set aside, depending on the variation that is sought.

A maintenance order made in terms of section 8 of the Divorce Act 70 of 1979 may be varied or suspended by the High Court if the court finds that there is sufficient reason to do so. In Reid v Reid, the court held that the onus is on the party seeking the variation to show sufficient reasons for a variation.

The court takes into account a number of factors when assessing any application for variation. In Hancock v Hancock, some factors included the parties conduct, age, health and ability to support themselves. Acutt v Acutt included the income of parties as a factor. In Dawe v Dawe, the court stressed the importance that the deterioration in the maintenance debtor’s financial position must be due to circumstances beyond his control. The maintenance debtor would have to provide evidence of how their income has been reduced. The courts will also consider the particular circumstances of each case.

If you’re the maintenance debtor and can no longer afford to pay the agreed maintenance amount, you can apply for a decrease at the Magistrate’s Court that is nearest to the maintenance creditor. You’ll have to complete the relevant form and submit a detailed income and expenditure statement to the maintenance officer.

According to section 6(1) of the Maintenance Act 99 of 1998, the Maintenance Court may vary an existing maintenance order if good cause exists. In Roels v Roels, the court held that the particular circumstances of each case must be considered in order to show whether or not good cause exists. Should the maintenance creditor fail to show good cause for a variation, and he/she has ceased paying the amounts as stipulated in the court order, the maintenance debtor will be ordered to either pay all the outstanding maintenance with interest or they may become liable to a fine or a term of imprisonment.

Where a maintenance debtor can prove a decrease in their income and their inability to pay the current maintenance amount, they may be successful in obtaining a reduction/variation of their maintenance obligation. If the stipulated amount of maintenance is not paid the court may, on application by the maintenance creditor, issue out a warrant of execution against the movable goods of the maintenance debtor, or grant the maintenance creditor a garnishee order against the salary of the maintenance debtor, or issue out a warrant of arrest for the maintenance debtor.

According to the Maintenance Amendment Act 9 of 2015, maintenance debtors who default on their maintenance order can be held liable in the following ways:

  • Be blacklisted at credit bureaus;
  • Be jailed for a period not longer than 3 years;
  • Be imprisoned with the option of paying a fine;
  • Have interest added to their maintenance arrears; or
  • Have their property or salary attached.

If the maintenance debtor cannot be reached, the court may issue out an order authorising a cell phone service provider to furnish the court with the maintenance debtors contact details.

Even though you are not able to approach the court during the lockdown period to vary your maintenance obligations, it is advisable that you begin preparing the necessary documentation for your application (should the maintenance creditor be unwilling to arrive at an interim maintenance agreement) so that it can be launched as soon as the lockdown is lifted. The ramifications of defaulting on your maintenance obligations can be disastrous and expensive. It is far better to engage with the maintenance creditor to arrive at an interim agreement than it is to be brought before the court by the maintenance creditor for defaulting on your maintenance obligations.

For more information about how to change a  maintenance obligation  based on a court order. HERE 

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