Case Study: “My name is Refilwe. My ex-husband and I got divorced a few years ago. In terms of the Settlement Agreement we signed, he must pay a certain amount of maintenance per month for our minor child. He has stopped paying maintenance claiming unemployment and has subsequently landed up in arrears with his maintenance. He had many assets which he recently sold. Despite this, he still did not settle his maintenance arrears and remains behind with payments. In fact, he does not make any payments. Please help?”
What does it mean to be in arrears with maintenance?
To be in arrears with maintenance simply means that you are behind or late with the fulfilment of your maintenance payments. These payments which you must make could be in respect of a duty or promise made.
What legislation governs the issue of maintenance in South Africa?
Maintenance in South Africa is governed by the Maintenance Act 99 of 1998. This Act sets out all you need to know in respect of maintenance.
Any recent case law dealing with the arears of maintenance?
Many cases in our courts deal with the issue of maintenance daily. However, the most recent and interesting case dealing with maintenance (at time of writing) is that of AR v HR (3565-2018)  ZAECPEHC.
This case dealt with an application for final sequestration of an estate of an ex-husband by his ex-wife because of maintenance arrears. The parties were previously married and in terms of a Settlement Agreement signed by both parties, the ex-husband had to pay maintenance for the minor children.
The ex-husband did not comply with this agreement and subsequently fell in arrears with the maintenance payments. Before a writ of execution was attempted by the ex-wife, several attempts were made to find the Respondent, however these proved to be unsuccessful.
The writ of execution could not be fulfilled because the Respondent could not be found by the Sheriff. The ex-wife then applied for the sequestration of his estate.
The ex-husband opposed to this application on the basis that he could not fulfil his maintenance obligations because he had been unemployed for some time and thus had no source of income.
Despite the argument made out by the ex-husband in the proceedings, the court granted the sequestration of his estate.
The court set out the requirements which must be met in terms of Section12 of Insolvency Act 24 of 1936 for a final sequestration order to be granted. These requirements are as follows:
- The sequestrating creditor has established against the debtor a claim of not less than R100.00 entitling him/her to apply for the sequestration of the debtor’s estate.
- That either the debtor has committed an act of insolvency or the debtor is insolvent.
- There is reason to believe that it will be to the advantage of creditors if the debtor’s estate be sequestrated.
The court believed the above requirements were met and thus an order for the final sequestration of the ex-husband’s estate was granted.
Contact us for more information about how we can help you with your maintenance dispute or look at our maintenance page for more information on maintenance claims in general.