I can no longer afford to pay maintenance, what should I do?
Many of us are still recovering from the harsh effects of the Covid-19 pandemic. Some of us are faced with the issue of not being able to meet our financial obligations. One such obligation could be a maintenance order. South African law, imposes harsh sanctions on maintenance debtors who fail to adhere to their maintenance obligations. Therefore, If you ever find yourself in a position where you are no longer able to meet your maintenance obligations, it is imperative to use the avenues available to you in terms of the law. It so often occurs that the financial circumstances of the party responsible for paying maintenance may change and resultantly the party may no longer be able to meet his or her maintenance obligations in terms of the maintenance order. Section 31 of the Maintenance Act renders any failure to comply with a maintenance order a criminal offence punishable by up to 3 years of imprisonment. It is, therefore, imperative for a person who is no longer able to afford to pay maintenance to use the avenues available to him or her in terms of the law. Substitution or Discharge of a Maintenance Order The Maintenance Act confers on Maintenance Courts the power to vary or discharge maintenance orders including maintenance orders made by the High Court. Spousal Maintenance In terms of section 8 of the Divorce Act, a maintenance order may be rescinded, varied or suspended if there exists ‘sufficient reason’ to do so. This could also be read together with section 6 of the Maintenance Act which provides that a maintenance order can be substituted or discharged if ‘good cause’ is shown. South African courts have accepted the view that it is not possible to give a precise definition to the term ‘sufficient reason’ (good cause) and that the circumstances of each case must be considered. In the case of Havenga v Havenga Harms J held that, in general, in the absence of a real change in circumstances there would not be sufficient reason for the variation or rescission of a maintenance order. However, a change in circumstances is not a statutory requirement and there might be any other sufficient reason for a maintenance order to be varied. In light of the above-mentioned, it stands to reason that a change in one’s financial circumstances can be a factor to consider whether sufficient reason (good cause) exists for one to obtain a reduction in spousal maintenance. Child Maintenance It is important to distinguish the variation of maintenance orders in respect of child maintenance from the variation of maintenance orders in respect of spousal maintenance. The duty to maintain a child derives from common law and not from the statute. In addition to good cause, the court will also consider whether it will be detrimental to the child’s best interest if the court grants an order for the reduction of maintenance. In Hossack v Hossack the court held that the needs of the minor children and the ability of the maintenance debtor to pay constitute ‘good cause’ for a variation. Furthermore, in Vedovato v Vedevato the court emphasised that once ‘good cause’ is shown, the factors that then primarily need to be considered are the needs of the children. Conclusion In light of the above, it is evident that our law does provide for an avenue that a maintenance debtor who can no longer afford to pay maintenance could pursue. In respect of spousal maintenance, the maintenance debtor will have to prove that sufficient reason (good cause) exists to be successful with a variation of maintenance order. In respect of child maintenance, the maintenance debtor, will in addition to proving sufficient reason (good cause), also have to prove that it will not be detrimental to the child’s best interests if a reduction in maintenance is granted. 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)
It’s not all fun and games with holiday homes
Finding a holiday home isn’t as simple as choosing your favourite holiday spot and packing your bags. With the festive season around the corner, the urge to buy a holiday home may be rising, but a decision like this demands time and careful consideration. Let it simmer. This is not a holiday – this is an investment. Just like those of us who want to avoid over-crowded beaches and rush-hour-like traffic when travelling, you may want to wait for the off-season. Property prices, as well as both the buyer’s and seller’s expectations, may be affected by the holiday buzz. Be sure to conduct the necessary research. Owning property in an area is different from simply visiting for a week or two during the holidays. Make sure you choose a location suitable for a home, not just a pit-stop. Consider the area’s liveability both in and out of season. Quite often holiday destinations become ghost towns when the holiday season ends. If that is exactly the peace and quiet you want, perfect! If it’s not, you may want to continue your search, because, contrary to their names, holiday homes can’t only be lived in during holidays. Homes need constant maintenance and care. Staying close to your holiday home will allow you to break away for weekends, making sure the home receives the necessary attention. If your holiday home is a bit too far from your current residence, consider renting it out for the periods when you are not there. This will ensure your property is well-maintained as well as offering you an extra income. When choosing to rent out your property it becomes especially important to make sure the area provides the necessary amenities for everyday living. The most important aspect, though, is enjoyment. A holiday home is meant to be enjoyed. Make sure you enjoy yours for the longest possible time by making an informed decision. 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 of surviving spouse
The idea of freedom of testation is a core value of South African law and enjoys wide protection. The Maintenance of Surviving Spouses Act, 27 of 1990, was drafted to give a spouse legal recourse if disinherited or negatively affected by the wishes of the testator, or in the case of intestate succession. The goal of this piece of legislation is to ensure a person is not left destitute after the death of their spouse. Who can claim? The definition of the Act describes a surviving spouse as follows: “survivor means the surviving spouse in a marriage dissolved by death.” What can be claimed? Section 2(1) of the Act determines as follows: “If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of her reasonable maintenance needs until her death or remarriage in so far as she is not able to provide therefor from her own means and earnings. What is the definition of own means? “own means” include any money or property or other financial benefit accruing to the survivor in terms of the matrimonial property law or the law of succession or otherwise at the death of the deceased spouse.” What is reasonable maintenance means? Section 3 of the Act determines as follows: “Determination of reasonable maintenance needs – In the determination of the reasonable maintenance needs of the survivor, the following factors shall be taken into account in addition to any other factor which should be taken into account: The amount of the estate of the deceased spouse available for distribution to heirs and legatees; The existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and The standard of living of the survivor during the subsistence of the marriage and age at the death of the deceased spouse.” The executor of the deceased estate has to take the requirements above into account when determining the amount of the claim against the estate. 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)