On divorce, a party may be ordered to pay spousal and/or children’s maintenance to the other party. Whether such order is as a result of stretched out divorce proceedings or by way of a settlement agreement, it is pertinent to note that it remains an order of Court. Failure to pay maintenance as ordered, constitutes contempt of a Court Order, and the aggrieved party may institute further proceedings against the defaulting party for the Court to place such defaulting party in contempt and make any order it may deem fit.
No party may unilaterally decide to alter the terms of the maintenance order. Once an order for maintenance has been made, it may only be varied or discharged by way of further proceedings. To have the terms of a maintenance order varied or set aside, an application in terms of section 19 of the Maintenance Act, 1998, should be brought. Section 31 of the Maintenance Act states that failure to comply with a maintenance order is an offence punishable by a fine or imprisonment for up to three years.
In the recent case of EVA v JVA [2024] ZAWCHC 299, parties entered into a settlement agreement which was incorporated in the divorce order granted on the 2nd of December 2019. In terms of the settlement agreement, the Respondent had to pay monthly maintenance of R16 500.00 per month, with an annual escalation in accordance with the Consumer Price Index, for a period of three years. After the three-year period, the parties were to agree to alternative maintenance terms.
In and during December 2020, the Respondent absconded from his maintenance obligations. The Respondent’s defence for non-compliance with the maintenance order was that his financial circumstances had changed, and he could no longer afford the maintenance amount. The Respondent failed to take the Court into his confidence by providing evidence to the Court accurately reflecting his financial position. The Respondent further failed to properly pursue the variation of maintenance application.
As a result of the above, the Court found the Respondent in wilful and mala fide contempt. The Court ordered that the matter be referred to the appropriate Maintenance Court to assess the parties’ respective financial means and needs and to make an appropriate maintenance order. The Court further stated that should the Respondent fail to initiate maintenance proceedings within 30 days, the Applicant may approach the Court to impose an appropriate sanction against the Respondent. The Court ordered that the Respondent pay the Applicant’s costs on a party and party scale.
The EVA v JVA case underscores the critical importance of adhering to court-ordered maintenance obligations. Maintenance orders, whether arising from prolonged divorce proceedings or settlement agreements, carry the full weight of the law. Unilateral decisions to alter the terms of such orders are not permissible, and any changes must be pursued through formal legal channels as outlined in Section 19 of the Maintenance Act, 1998.
Failure to comply with maintenance orders can lead to severe legal consequences, including being held in contempt of court. This case highlights that financial difficulties must be substantiated with credible evidence to the court, and proper legal procedures must be followed to seek any variation in maintenance obligations.
Ultimately, the court’s decision to refer the matter to the Maintenance Court for a thorough assessment of the parties’ financial circumstances and to impose appropriate sanctions, if necessary, reinforces the judiciary’s commitment to ensuring compliance with maintenance orders. This serves as a reminder that maintenance obligations are not only a legal duty but also a crucial aspect of ensuring the well-being and support of dependents.
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