Category: Maintenance law

AN EX-SPOUSE REFUSING TO PAY MAINTENANCE?

If a couple has gotten divorced and they have a child, then it’s the responsibility of both parents to support the child. The duty to pay maintenance cannot be avoided, regardless of either parents’ situation. If one parent refuses to pay maintenance, then the other parent can go to a court and make a claim. Being a single parent doesn’t mean being the only one to contribute to maintenance.

What should I do about it?

To deal with a spouse who refuses to pay maintenance you would first need to inform the maintenance officer. The maintenance officer can apply to the court for:

  1. A warrant of execution;
  2. An attachment order against the defaulter’s salary;
  3. An order to attach any debts; and
  4. A criminal prosecution.

Does the non-paying parent have a defence?

The only defence that a parent could have for not paying maintenance is having a lack of income. However, if the parent is unwilling to work, such as laziness, then this will not count as a defence. Failure to pay maintenance is taken very serious, guilty parents won’t get much sympathy from the court or others. If the parent is capable of working, then they will be expected to pay maintenance.

But I can’t find my ex-spouse?

Non-paying parents may think that they’re being clever by changing their address and not notifying the court. This is considered a criminal offence, and will result in punishment. Fortunately, it’s not the responsibility of the single parent to find anyone. A maintenance investigator will track down and find a non-paying parent.

How to claim maintenance

If you want someone to pay maintenance or believe that they are not paying the proper amount, then you can follow these steps at your local magistrate’s court. Remember to go the court in the district where you live.

  1. Go to the court and complete the form “Application for a maintenance order (J101)”.
  2. Also submit proof of your monthly income and expenses.
  3. A date will be set on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
  4. A maintenance officer and an investigator will investigate your claim and look into your circumstances.
  5. The court will serve a summons on the respondent.
  6. The respondent then has to either agree to pay the maintenance, or challenge the matter in court.

If found liable to pay maintenance

If the court finds someone liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how the payments must be made. There are several ways the payments could be made. The court can order that the maintenance be paid at the local magistrate’s office or that the amount to be paid into the bank account chosen by the person claiming. The payments could also just be made directing to them. According to the new Maintenance Act (1998), an employer can deduct payments from an employee’s salary, if they’re liable for paying maintenance.

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)

WHAT HAPPENS AFTER YOUR HOUSE HAS BEEN BURNT TO THE GROUND?

A4There are definite steps that a homeowner will need to take if he ever has the traumatic experience of having his house burnt to the ground.

Over and above all the emotional and financial tension it causes in a person and his family, there will be several steps that a homeowner will need to take before the problems accompanying such an experience will be resolved.

The first step that needs to be taken by the homeowner is to report the matter to the nearest police station. The reason for this is twofold. Firstly, by reporting the matter the homeowner will receive the necessary case number as required by most insurance companies. Secondly, the conduct of the third party may turn out to be a crime, for example, arson. Thereafter the complaint will be investigated by the police and handed over to the prosecuting authority that will decide if the third party should be prosecuted or not.

The second step is to report the matter to the insurance company together with the abovementioned case number. Thereafter the insurance company will investigate the claim and decide whether it is going to accept or reject the claim. The insurance policy will determine the ambit of the insurance company’s discretion in deciding whether to accept or reject the insured’s claim. The reason for this is that the insurance policy will determine the rights and obligations between the insurance company and the insured. If the insurance company decides to reject the insured’s claim the insured will have two further options at his disposal. The insured will be able to take the matter to the ombudsman for determination, or he may dispute the matter in a civil court based on breach of contract by the insurance company.

The third step will be to indemnify the insured if the claim is accepted by the insurance company. The amount that the insurance will pay out to the insured will once again be determined by the terms and conditions of the insurance policy. If the insurance company rejects the insured’s claim or if the insured decides not to claim from the insurance company, then the insured will be able to institute action against the third party if he can prove that the house was burned down as a result of the intentional or negligent conduct or omission by the third party or, alternatively, that the house was burned down as a result of a breach of a contractual obligation between the homeowner and the third party, had a contract been in place.

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)

Freedom of testation and maintenance claims

A4_BIs a testator entitled to disinherit a child and if so, will the child have a claim for maintenance against the estate?

Freedom of testation is the liberty of a testator to choose how to bequeath his/her estate, and govern how his/her property is transmitted after his/her death. The law of succession then, is at least in part concerned with the preservation of a testator’s wishes, even if it additionally serves a social function related to the family and economic structures of society. In principle South Africa propagates total freedom of testation.

The general approach in South African law is that agreements or clauses which attempt to limit freedom of testation are not enforceable. Further, once the testator’s wishes have been ascertained, a court is ordinarily bound to give effect to these wishes. Our baseline is allowing for much liberty and autonomy in the law of succession.

However, freedom of testation has never been unfettered. Both the common law and statutes, such as the Maintenance of Surviving Spouses Act 27 of 1990, impose restrictions on the testator. Bequests which are manifestly illegal or contra bonos mores (against good morals) will be regarded as invalid. Further, spouses and children may be disinherited in terms of the will but they may still have a legitimate claim for maintenance against a testator’s estate which cannot be disregarded.

There is furthermore a presumption against disinheritance, and courts will usually prefer a softer construction of a testator’s will in this respect. This is based on an assumption that a parent is not likely to disinherit a child. However, it is important to note that if it is explicit or clear in a testator’s will that a child is disinherited, then this will not constitute an impermissible exercise of freedom of testation; rather, a testator is given the liberty to lawfully do so.

South Africa gives fairly broad freedom to testators. Testators can generally dispose of their estates as they desire, subject only to certain restrictions mentioned above. Further, testators are not required to give reasons for their decisions in this regard, and are not accountable to their families for testamentary choices.

Nonetheless, the parental duty to maintain children will pass to the estate upon death, as confirmed in Carelse v Estate De Vries (1906) 23 SC 532. The minor child’s claim for maintenance is endorsed as settled law and a common law restriction on freedom of testation.

It should be noted that the child’s claim for maintenance and education is not to be confused with a legitimate portion as it does not entitle a minor to a set portion of the estate or, put differently, does not presumptively limit the testator’s ability to divide her estate as she or he desires. As such a testator could potentially disinherit a child without this impacting the common law claim the child will have against the estate.

Currently, South African law also provides for the surviving spouse to exercise a claim for maintenance against the deceased’s estate. The parental (and spousal) duty then does not merely extinguish upon death. The provision of maintenance for children gives effect to children’s rights as provided for by the Constitution, and affording this maintenance claim to protect dependants is wholly justifiable. This does not however entail that children should be entitled to a legitimate portion or forced heirship generally, as this would constitute an overly extensive constriction on freedom of testation.

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)

Maintenance: Not only for children

A4_BWhen the word “maintenance” is mentioned, many people think of women claiming maintenance for minor children, or alternatively, women claiming maintenance from their ex-husbands. However, in this article we will deal with parents claiming maintenance from their adult children.

Mike Larry received a summons from the Maintenance Court to appear three weeks later for a maintenance matter, however Mike had no children or wife and was quite confused, thinking that perhaps the Court had made a mistake. Mike attended the Maintenance Court in order to enquire whether there had been a mishap in the documentation. However, what Mike found out made his heart sink, and soon his bank account, too.

Mike’s father, Jermaine, had made an application at the Maintenance Court for maintenance from Mike as he had no job and therefore no income. Mike asked his lawyer whether this was even possible and the answer was affirmative.

According to the Maintenance Act 99 of 1998, parents and children have a reciprocal duty of support. A child has a duty to support his/her parents and grandparents, but always subject to the rule that support must be claimed from one’s nearest relatives first. The basis of a child’s duty to support their parents is the sense of dutifulness or filial piety (relating to or due from a son or daughter). In certain circumstances even minor children may have to support their parents. As always, the criteria which must be present is a need on the part of the person to be maintained, and the ability to support on the part of the person from whom support is claimed. A parent who claims support from a child must prove his or her need and the child’s ability to support the parent. As mentioned above, a more stringent criterion of need is applied to parents than to children; indigence on the part of the parent is stated to be a requirement.

Our authorities are not entirely clear on this point. In Oosthuizen v Stanley the court spoke of “the quality and condition of the persons to be supported”. In the same case it was pointed out that where a parent must be supported it is not only the parent’s own needs but also those of the parent’s dependents which must be considered. In Van Vuuren v Sam Rabie, the Judge referred to the same criterion but stressed that the support of parents must be confined to the basic needs which are food, clothing, shelter, medicine and care in times of illness. Relying on the case of Surdus v Surdus, the Judge said that, in assessing the quality and condition of life of the person to be supported, it is primarily his present, not his past situation which is considered, but that in assessing these the Judge should exercise his discretion. For instance, a previously wealthy parent who has fallen on hard times should not be compelled to eat peasants’ food. It has been argued that the criterion of need should not be so narrowly interpreted here as to destroy the whole concept of a reciprocal obligation.

However, the following can also be considered when a parent makes an application for maintenance from his/her child:

  1. Siblings;
  2. Extra income; and
  3. Quality of living.

In terms of the common law an extramarital child has a duty to support his/her mother, but whether or not he/she must support his/her father has yet to be decided. It can, however, be argued that an extramarital child would be liable to maintain his/her father in terms of Section 16 of the Children’s Act 38 of 2005.

In conclusion, if you feel you are being unfairly targeted for a maintenance claim, be sure to consult with your attorneys so they can inform you of your rights and responsibilities.

This newsletter 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)

Who is responsible for water leaks?

A3BMaintenance of a sectional title scheme can appear straightforward, but the reality is that disputes arise frequently regarding maintenance issues relating to sectional title units.

This is often the result of the complex relationship of close quarter living and the shared form of ownership represented by sectional titles. Making things even more complicated is the silence of the Sectional Titles Act on many of the minor issues encountered daily in sectional title schemes. So how do you approach the maintenance issues in a sectional title scheme?

Dave owns a flat on the second floor of a sectional title scheme. There is a water leak coming from flat A above him, causing damp problems in his flat and the owner of flat A does not repair the leak. This scenario creates a flurry of questions:

  • Should Dave, the owner of flat A or the body corporate repair the leak?
  • Can they enter flat A, or should the owner grant them permission first?
  • If the owner of flat A refuses to do the repairs or to grant access, what are they to do to stop the leak and further damage occurring?

What does the law say regarding the responsibility of parties in this scenario? Section 44(1)(a) and (c) of the Sectional Titles Act read with management rules 68-70 of the Sectional Titles Act provides that an owner must repair and maintain his section in a state of good repair. The owner must also allow a person who is authorized in writing by the body corporate to enter his section at a reasonable time and after notice was given (except in case of emergency when no notice is required) to enter the property. This will happen with the purpose to inspect, maintain, repair, or renew the pipes, wires cables, and ducts capable of being used in connection with the enjoyment of any other section or the common property.

Section 37 of the Sectional Titles Act requires the body corporate to maintain and repair the common property. Therefore, if the leak originates from the shower in flat A above, it will be the responsibility of the owner of flat A to repair the damage.

Due to the fact that the leak is caused by flat A’s shower base, and therefore forms part of his section and not the common property, it is the responsibility of the owner of the section causing the damage and the leak to repair it.

If such an owner does not repair the leak within a reasonable time as to stop further damage, the owner suffering the damage can ask the body corporate to step in and repair the leak using the same procedure as in the instance where the leak is caused by pipes forming part of the common property. The body corporate can then recover the cost of repairs from the defaulting owner.

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.

Maintenance

A1blWhat can you do to enforce a maintenance order against a person who is responsible for paying maintenance, but fails to do so or is paying too little?

When someone fails to pay maintenance in terms of a maintenance order you have the option of lodging a complaint against them with the Maintenance officer, stating that the person is legally liable to maintain, for example, yourself or your minor child(ren) and is not doing so. The Maintenance officer must investigate the complaint and may then institute an enquiry in a maintenance court. The Maintenance officer, not the complainant, decides whether to institute an enquiry.[1] In investigating a complaint about maintenance, the Maintenance officer may obtain statements or any relevant information pertaining to the payment of maintenance.  An enquiry under the Maintenance Act is a procedure which empowers people to enforce their rights and those of their child(ren) at the State’s expense. During the course of a maintenance enquiry the parties usually come to an agreement and seek to withdraw the proceedings, or have the terms of the agreement made an order of court, which cannot be disregarded by the magistrate.[2] If the parties cannot come to an agreement the matter will be referred to the maintenance court.

Whenever a person against whom a maintenance order has been issued under the Act fails to make any payment in accordance with that order, the order is enforceable in respect of any amount that person has failed to pay, together with any interest:

  • by execution against property;
  • by the attachment of emoluments; or
  • by the attachment of debt.

If a maintenance order made under the Act remains unsatisfied for a period of ten days from the day on which the amount became payable or the order was made, the person in whose favour the order was made may apply to the maintenance court in which the order was made: 1) for authorisation of the issue of a warrant of execution, 2) for an order for the attachment of emoluments or 3) for an order for the attachment of debt. The application must be accompanied by a copy of the maintenance order or other order in question and a statement under oath stating the amount that the person against whom the order was made has failed to pay.[3]

Subject to the defence that failure to make a payment in terms of a maintenance order is due to a lack of means, a person who fails to make a particular payment in accordance with a maintenance order is guilty of an offence and liable to conviction with a fine or imprisonment for a period not exceeding one year, or to imprisonment without the option of a fine.[4]

On the application of the public prosecutor and in addition to or instead of imposing a penalty, a court convicting any person of the offence of failing to make a payment in accordance with a maintenance order may grant an order for recovery from that person of the amount he or she has failed to pay, together with any interest.[5]

Your best option would be to approach the Maintenance officer in order to reconcile the outstanding amounts. Thereafter, if the person still fails to effect payment, you can approach an attorney to either proceed with execution of the order, if the person has sufficient movable or immovable property, or obtain an emolument order which will be served upon the employer of the person (ordering the employer to pay the maintenance), or you may approach the maintenance court for an order for the attachment of any debt accruing, then or in the future, to the person responsible for paying maintenance.

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.

[1] The Maintenance Act 99 of 1998.

[2] Young v Young 1985(1) SA 782 (C).

[3] The Maintenance Act 99 of 1998.

[4] Ibid.

[5] Ibid.

Maintenance: Not only for children

A4blWhen the word “maintenance” is mentioned, many people think of women claiming maintenance for minor children, or alternatively, women claiming maintenance from their ex-husbands. However, in this article we will deal with parents claiming maintenance from their adult children.

Mike Larry received a summons from the Maintenance Court to appear three weeks later for a maintenance matter, however Mike had no children or wife and was quite confused, thinking that perhaps the Court had made a mistake. Mike attended the Maintenance Court in order to enquire whether there had been a mishap in the documentation. However, what Mike found out made his heart sink, and soon his bank account, too.

Mike’s father, Jermaine, had made an application at the Maintenance Court for maintenance from Mike as he had no job and therefore no income. Mike asked his lawyer whether this was even possible and the answer was affirmative.

According to the Maintenance Act 99 of 1998, parents and children have a reciprocal duty of support. A child has a duty to support his/her parents and grandparents, but always subject to the rule that support must be claimed from one’s nearest relatives first. The basis of a child’s duty to support their parents is the sense of dutifulness or filial piety (relating to or due from a son or daughter). In certain circumstances even minor children may have to support their parents. As always, the criteria which must be present is a need on the part of the person to be maintained, and the ability to support on the part of the person from whom support is claimed. A parent who claims support from a child must prove his or her need and the child’s ability to support the parent. As mentioned above, a more stringent criterion of need is applied to parents than to children; indigence on the part of the parent is stated to be a requirement.

Our authorities are not entirely clear on this point. In Oosthuizen v Stanley the court spoke of “the quality and condition of the persons to be supported”. In the same case it was pointed out that where a parent must be supported it is not only the parent’s own needs but also those of the parent’s dependents which must be considered. In Van Vuuren v Sam Rabie, the Judge referred to the same criterion but stressed that the support of parents must be confined to the basic needs which are food, clothing, shelter, medicine and care in times of illness. Relying on the case of Surdus v Surdus, the Judge said that, in assessing the quality and condition of life of the person to be supported, it is primarily his present, not his past situation which is considered, but that in assessing these the Judge should exercise his discretion. For instance, a previously wealthy parent who has fallen on hard times should not be compelled to eat peasants’ food. It has been argued that the criterion of need should not be so narrowly interpreted here as to destroy the whole concept of a reciprocal obligation.

However, the following can also be considered when a parent makes an application for maintenance from his/her child:

  1. Siblings;
  2. Extra income; and
  3. Quality of living.

In terms of the common law an extramarital child has a duty to support his/her mother, but whether or not he/she must support his/her father has yet to be decided. It can, however, be argued that an extramarital child would be liable to maintain his/her father in terms of Section 16 of the Children’s Act 38 of 2005.

In conclusion, if you feel you are being unfairly targeted for a maintenance claim, be sure to consult with your attorneys so they can inform you of your rights and responsibilities.

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.

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