Maintenance orders and variation
Maintenance is that part of the divorce order which is not a final determination of the rights of the parties. However, as long as a court order exists for maintenance for a certain amount, the person against whom a maintenance order was granted must abide by that order. In cases where the aforementioned party does not pay the maintenance or fails to pay the entire amount, arrears will accumulate.
The person who is entitled to the maintenance may approach the Maintenance Court for an application in terms of Section 26 of the Maintenance Act, 1998 (“the Act”). The party failing to pay maintenance will be in contempt of court and would thus be guilty of a criminal offence.
However, the Maintenance Officer is aware that it is possible for someone’s financial position to have changed since the maintenance order was originally made. A person may have become unemployed, resulting in him or her not being able to pay the same amount of maintenance. Another factor to consider is the possibility that the needs of the person who is entitled to maintenance may have changed.
The party against whom an order to pay maintenance was made can bring an application for Substitution or Discharge of Existing Maintenance Order in terms of the Act, if good cause exists (such as unemployment). He or she will have to submit a complete statement of income and expenditure, as well as a statement explaining the reasons for the application.
The matter will then come before the Maintenance Officer. The meeting with the Maintenance Officer is of a less rigid nature than appearing in Court in front of a magistrate and is of a more inquisitorial nature.
The Maintenance Officer acts as a neutral party during maintenance applications. At the hearing, the parties, or their legal representatives, will go through the expenses of each party and find expenses on which the paying party can save money and vice versa in order to make payment easier and to make sure that the other party’s luxurious lifestyle isn’t being maintained whilst the paying party hardly makes ends meet.
The Maintenance Officer will take certain factors into account when making an order. These factors may include the standard of living of the parties, the financial position of both parties and the age of the parties. The Maintenance Officer will make an order which the parties will have to abide by.
If the biological parent who is supposed to pay maintenance for a child cannot make the payment him- or herself, his or her parents (the grandparents of the child) may be ordered to pay the maintenance of the grandchild as they also have a duty to support a minor child.
For more information regarding maintenance issues, please contact:
Kobus Pieterse | Partner
Areas of Expertise: Litigation | Family Law | Curatorship Applications
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)