MAINTENANCE
In study Maintenance, students must refer to:
* Chapter 13 of the text book, Family Law, J Heaton, LexisNexis
* the Maintenance Act 99 of 1998
* Maintenance of Surviving Spouses Act 27 of 1990
* Maintenance of Surviving Spouses Act 27 of 1990
* the Divorce Act 70 of 1979
(the aforesaid legislation as well as the forms relating to maintenance can be downloaded from http://www.info.gov.za).
In respect of the text the following is important:-
·
the difference in a section 7 (1) and section 7(2) of the Divorce Act order;
· the factors considered by the court in making a section 7(2) order; in this regard students must take note of the case Grasso v Grasso Grasso;
·
understand the purpose of rehabilitative, lump sum and token maintenance and take note of Botha v Botha, Kooverjee v Kooverjee, Qoza v Qoza;
· the criteria for rescinding / amending an existing maintenance order in terms of section Sec
8(1) of the Divorce Act (Cohen
v Cohen, Schutte v Schutte; Luttig v Luttig);
· the position when an ex contractu maintenance obligation in terms of a settlement agreement is silent on remarriage (Odgers v De Gersigny; Hodges v Coubrough) .
Divorce Act, 1979 (Act No 70 of 1979)
7. Division of assets and maintenance of parties
1) A
court granting a decree of divorce may in
accordance with a written agreement between the parties make an order with
regard to the division of the assets of the parties or the payment of
maintenance by the one party to the other.
2) In
the absence of an order made in terms of subsection (1) with regard to the
payment of maintenance by the one party to the other, the court may, having
regard to the existing or prospective means of each of the parties, their
respective earning capacities, financial needs and obligations, the age of each
of the parties, the duration of the marriage, the standard of living of the
parties prior to the divorce, their conduct in so far as it may be relevant to
the break-down of the marriage, an order in terms of subsection (3) and any
other factor which in the opinion of the court should be taken into account,
make an order which the court finds just in respect of the payment of
maintenance by the one party to the other for any period until the death or
remarriage of the party in whose favour the order is given, whichever event may
first occur.
3) A
Court granting a decree of divorce in respect of
marriage out of community of property-
a) entered
into before the commencement of the Matrimonial Property Act, 1984, in terms of
an ante nuptial contract by which community of property, community of profit and
loss and accrual sharing in any form are excluded; or
b) entered
into before the commencement of the Marriage and Matrimonial Property Law
Amendment Act, 1988, in terms of section 22 (6) of the Black Administration
Act, 1927 (Act No. 38 of 1927), as it existed immediately prior to its repeal
by the said Marriage and Matrimonial Property Law Amendment Act, 1988,
may, subject to the provisions of subsection (4),
(5) and (6), on application by one of the parties to that marriage, in the
absence of any agreement between them regarding the division of their assets,
order that such assets, or such part of the assets, of the other party as the
court may deem just be transferred to the first-mentioned party.
4) An
order under subsection (3) shall not be granted unless the court is satisfied
that it is equitable and just by reason of the fact that the party in whose
favour the order is granted, contributed directly or indirectly to the
maintenance or increase of the estate of the other party during the subsistence
of the marriage, either by the rendering of services, or the saving of expenses
which would otherwise have been incurred, or in any other manner.
5) In
the determination of the assets or part of the assets to be transferred as
contemplated in subsection (3) the court shall, apart from any direct or
indirect contribution made by the party concerned to the maintenance or
increase of the estate of the other party as contemplated in subsection (4),
also take into account-
a) the
existing means and obligations of the parties, including any obligation that a
husband to a marriage as contemplated in subsection (3) (b) of this section may
have in terms of section 22 (7) of the Black Administration Act, 1927 (Act No.
38 of 1927);
b) any
donation made by one party to the other during the subsistence of the marriage,
or which is owing and enforceable in terms of the ante nuptial contract
concerned;
c) any
order which the court grants under section 9
of this Act or under any other law which affects the patrimonial position of
the parties; and
d) any
other factor which should in the opinion of the court be taken into account.
6) A
court granting an order under subsection (3) may, on application by the party
against whom the order is granted, order that satisfaction of the order be
deferred on such conditions, including conditions relating to the furnishing of
security, the payment of interest, the payment of installments, and the delivery
or transfer of specified assets, as the court may deem just.
7)
a) In
the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to
paragraphs (b) and (c), be deemed to be part of his assets.
b) The
amount so deemed to be part of a party’s assets, shall be reduced by any amount
of his pension interest which, by virtue of paragraph (a), in a previous
divorce-
i) was
paid over or awarded to another party; or
ii) for
the purposes of an agreement contemplated in subsection (1), was accounted in
favour of another party.
c) Paragraph
(a) shall not apply to a divorce action in respect of a marriage out of
community of property entered into on or after 1 November 1984 in terms of an ante nuptial contract by which community of property, community of profit and
loss and the accrual system are excluded.
a) The
court granting a decree of divorce in respect of a member of such a fund, may
make an order that-
i) any
part of the pension interest of that member which, by virtue of subsection (7),
is due or assigned to the other party to the divorce action concerned, shall be
paid by that fund to that other party when any pension benefits accrue in
respect of that member;
ii) the
registrar of the court in question forthwith notify the fund concerned that an
endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that
other party and that the administrator of the pension fund furnish proof of
such endorsement to the registrar, in writing, within one month of receipt of
such notification;
b) Any
law which applies in relation to the reduction, assignment, transfer, cession,
pledge, hypothecation or attachment of the pension benefits, or any right in
respect thereof, in that fund, shall apply mutatis mutandis with regard
to the right of that other party in respect of that part of pension interest
concerned.
9) When
a court grants a decree of divorce in respect
of a marriage the patrimonial consequences of which are according to the rules of the South African private international
law governed by the law of a foreign state, the court shall have the same power
as a competent court of the foreign state concerned would have had at that time
to order that assets be transferred from one spouse to the other spouse.
In respect of the maintenance application process students should take note of the provisions of the Maintenance Act as well as the following flow chart :
Flow chart in respect
of a maintenance inquiry:
1.
Client
lodges
a claim at the magistrate’s court that has jurisdiction to preside over the
matter.
2.
Application is lodges by completing a
standard form obtained from the maintenance prosecutor at the court under oath.
3.
The maintenance prosecutor will peruse the
application and if satisfied that there is a responsibility to maintain /good
cause shown for the variation of an existing order exists, issue the application with a reference/case
number.
4.
The application as well as a notice to appear
in court for an inquiry will be served on
the Respondent via either the SAPS or the Sheriff.
5.
The Respondent has to appear at court on the date of the application. If he/she fails to
attend court and prima facie proof exist that he/she had knowledge of the
application – the prosecutor/applicant’s attorney may request that judgement by
default is granted.
6.
If the respondent attends court on the date
of the inquiry the matter will firstly be dealt with informally with an attempt to settle.
7.
If the parties cannot settle the matter- the
matter will be postponed by a magistrate
for trial.
8.
Prior to
the trial date, either party may approach the prosecutor/the prosecutor
on own accord can instruct a maintenance investigator to secure certain
information etc.
9.
Prior to the trial date the attorneys acting
on behalf of the parties will prepare for trial by having subpoenas issued iro witnesses they intend calling during the
trial, as well as by indexing and
paginating the bundle of documents they wish to use during the maintenance
trial and by discovering same.
10.
The respective bundles of documents will be
exchanged prior to trial, whilst a copy will be made available to the court,
the maintenance prosecutor as well as for the witnesses.
11.
On the date
of trial the applicant will firstly present oral evidence. After the
applicant testified the respondent’s attorney will have an opportunity to
cross-exam, thereafter re-examination by the applicant’s attorney.
12.
The applicant’s attorney may call further witnesses to support the
application before court. Further witnesses must wait outside the court.
13.
Once the applicant has finalized his/her case
– the applicant’s attorney will close
its case.
14.
The respondent
will thereafter present his/her case. Again the respondent will lead oral
evidence and steps 11-13 are repeated.
15.
Once the respondent closes his/her case the
attorneys of the parties will present
arguments to the magistrate, where after the court will make a ruling.
No comments:
Post a Comment