The maintenance clause in a divorce order is not final in the sense that it can never be altered. It is possible to do so by way of approaching the Maintenance Court on application for an enforcement of the maintenance order or substitution of existing maintenance order. The Maintenance Officer will consider certain factors when bringing an amendment to the original divorce order.
Maintenance is that part of the divorce order which is not a final determination of the rights of the parties, however, as long as there exists a Court order 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 even 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 for Enforcement of Maintenance or Other Order in terms of Section 26 of the Maintenance Act, 1998. A party failing to pay maintenance will be in contempt of Court and would thus be guilty of a criminal offence. The party entitled to the maintenance may apply for an S31(1) Form which would result in the matter being dealt with in the Criminal Court.
However, the Maintenance Officer is aware that it is not possible for someone’s financial position to remain the same since the time of which the order is made until the party who is entitled to maintenance reaches a point of applying for an enforcement of maintenance order. Situations change, in some instances people become unemployed which may result in the party against whom the order was made, not being able to pay the same amount of maintenance. Another factor to consider is the fact that the needs of the person who is entitled to maintenance might change.
The party against whom the maintenance order is brought but is failing to pay because he no longer can afford to pay the amount stipulated in the order can bring an application for Substitution or Discharge of Existing Maintenance Order Complaint in terms of Section 6(1)(b) of the Maintenance Act, 1998. This person against whom this application is brought will receive a subpoena to be at Court on a certain date and time. The aforementioned party will have to present 3 months’ latest pay slips, 3 months’ bank statements, a list of proof of all expenses and a copy of his/her ID book.
The party bringing the application will also be requested to present documents to the Court. These documents may include: bank statements, salary slips, statements of monthly income and expenses, a list of movable/immovables and credit card statements.
The party will be subpoenaed to appear in front of the Maintenance Officer and their legal representatives may be present. This 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 will act as a neutral party. The 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 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.
In some instances, the father cannot pay the maintenance to his children himself and in those cases, the grandparents of the father will have to pay the maintenance of the grandchild as they also have a duty to support a minor child.
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)