WITHHOLDING OF MAINTENANCE IS FINANCIAL ABUSE IS SOUTH AFRICA 

We receive so many calls on a daily basis for assistance with maintenance and domestic violence matters.

Recently, there is a sad trend in regard to the withholding of maintenance payments due for ex-partners, ex-spouses and children.

We point out that maintenance payable in terms of divorce orders, other court orders or in terms of the Maintenance Act 99 of 1998 or in terms of the Domestic Violence Act 116 of 1998, must be paid timeously to the beneficiary. One of the primary purposes of such orders is for the beneficiary to be placed in a position to manage the costs and expenses of the beneficiary when the cost or expense has to be paid.

Withholding of maintenance is not only a social injustice in light of the serious consequences for beneficiaries in not being able to pay for their monthly bills, incurring credit judgments and credit listings for non-payment of debit orders and other bills.

In terms of the Domestic Violence Act 116 of 1998, as amended[1], domestic violence is defined to be:

• any form of abuse which includes physical, sexual, emotional, psychological or economic abuse;
• damage to property;
• stalking;
• entry into a person’s home without their consent;
• any other abusive or controlling behaviour where such conduct (acts or omissions) causes harm or may cause harm to your health, safety, or well-being.

Economic abuse is defined to be the “unreasonable deprivation of economic or financial resources to which a complainant is entitled under law…required for household necessities… mortgage bond repayments or payment of rent in respect of a shared residence”.

Not only is it a contravention of the Maintenance Act to withhold maintenance due and payable but it also constitutes domestic violence as defined in the Act because it is obviously a form of abuse.

If you are experiencing delays in payment of maintenance which is due and payable to you and /or your child(ren) it is imperative to approach the courts for assistance.

One of the remedies available is to apply for an Emoluments Attachment Order against the employer and earnings of the maintenance debtor so that you have a greater prospect of receiving the maintenance due on the expected date.

FREQUENTLY ASKED QUESTIONS?

How do I obtain a protection order in terms of the Domestic Violence Act?

Who can apply for a protection order?

• Any person who has been in a domestic relationship with the abuser/respondent.

When is there a domestic relationship between the complainant and the respondent?

• If they are or were married to one another;
• if they live or lived together in a relationship in the nature of a marriage, though they are/were not;
• if they share parental responsibility over a child;
• if they are/were engaged, dating or in a customary relationship;
• if they are blood relatives or related by affinity or adoption;
• if they share or recently shared the same residence.

Against whom can a protection order be obtained?

• Any person who is or has been in a domestic relationship with a complainant and who has committed an act of domestic violence against the complainant.

Where can a complainant apply for a protection order?

• At any Magistrates Court or Family Court;
• Any court in the area where the complainant permanently resides, carries on business or is employed;
• In the area where the respondent resides, carries on business or is employed or any court in the area where the abuse took place or is taking place.

Can a complainant be represented by a lawyer when applying for a protection order?
Yes.

With whom must the application for a protection order be lodged at the Magistrates’ Court?
The Clerk of the Court.

Can a minor apply for a protection order without the assistance of a guardian?
Yes.

When is it allowed for an application for a protection order to be brought outside ordinary court hours or on a day that is not an ordinary court day? 

If the court is satisfied based on the allegations of facts and evidence that the complainant will suffer undue hardship if the application is not dealt with immediately.

What documents must the complainant submit when applying for a protection order?

• An application substantially corresponding to Form 2 of Regulation 4 of the DVA regulations for a protection order.
• Supporting affidavits by persons who have knowledge of the matter.

What happens if the court does not issue the Interim protection order?

The court must direct the clerk of the court to cause certified copies of the application and any supporting affidavits to be served on the Respondent in the prescribed manner, with the prescribed notice (Form 5 of Regulation 7) thereby calling on the Respondent to show cause why a protection order should not be issued.

When does the court issue a final protection order?

A final protection order will be issued if the Respondent does not appear on the return date as set out in the interim protection order, or if the Respondent does not appear on the return date as set out in the notice when an interim protection order was not granted.

If the Respondent appears on the return date as set out in the interim protection order or notice and opposes the issuing of a protection order, then the court will proceed to hear the matter.

A protection order issued by the court must be in the prescribed form and it must be served on the Respondent.

What happens after a protection order has been issued?

The clerk of the court must send certified copies of the protection order and warrant of arrest to the police station of the complainant’s choice.

Issuing of the warrant of arrest?

The warrant of arrest must be authorised and issued in accordance with Form 8 of Regulation 9.

Whenever a court issues a protection order, the court must make an order authorising the issue of a warrant of arrest.

The execution of the warrant of arrest is suspended subject to compliance with any prohibition, condition, obligation or order imposed by the court.

SOUTH AFRICAN POLICE SERVICE Family Violence, Child Protection and Sexual Offences Units (FCS).

The FCS Units can assist with allegations in regard to:

• sexual offences against children,
• person-directed crimes (where the family is involved),
• illegal removal of children under the age of 12,
• crimes facilitated through the use of electronic media.

For help, call SAPS Crime Stop: 08600 10111 or your local SAPS police station.

[1] Amended by Act 1 of 2011, Act 31 of 2008, Act 55 of 2003.

ASHLEY SLAMAT ATTORNEYS – Success is the Only option™

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ASHLEY SLAMAT ATTORNEYS – Success is the Only option™

A surviving spouse has a claim against the estate of the deceased spouse for the provision of reasonable maintenance until his or her death or re-marriage, subject also to whether or not the surviving spouse is unable to provide for him/herself from their own means.

Essentially, the Act created a statutory right and permits such a claim for maintenance against estate of deceased spouse in circumstance where:

1. the marriage is dissolved by death after the commencement of the Act;
2. The surviving spouse shall, in respect of his/her claim for maintenance, have no right of recourse against any person (beneficiary or heir) to whom money or property has been paid, delivered or transferred in terms of section 34(11) or 35(12) of the Administration of Estates Act, 1965 (Act No. 66 of 1965), or pursuant to an instruction of the Master in terms of section 18(3) or 25(1)(a)(ii) of Act No. 66 of 1965.

Determination of reasonable maintenance needs in regard to maintenance of surviving spouses

In the determining the ‘reasonable maintenance needs’ of the surviving spouse, the following factors shall be taken into account in addition to any other factor which should be taken into account:

• The amount in 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 his age at the death of the deceased spouses.

Scenarios and case law

The law stipulates that, if a person, whether in error or with intent, fails to make provision in his or her will for the maintenance of a person to whom they owe a legal duty of support (for example, a minor child) the latter can lodge a claim against the deceased estate for maintenance.

At South African common law, a surviving spouse had no right to claim maintenance from the estate of the first-dying spouse, even if the survivor was left destitute. (rf Glazer v Glazer N.O. 1963 (4) SA 694 (A) and in Hodges v Coubrough N.O. 1991 (3) SA 58 (D)). Neither could a court make an order in terms of the Divorce Act to bind the estate of the deceased spouse to maintain the surviving spouse. This could however be achieved by creation in a contract, for example in a divorce agreement.

Statutory right

In 1990, the enactment of the Maintenance of Surviving Spouses Act 27 of 1990 changed the law in this regard and afforded a surviving spouse a claim for maintenance against the estate of the first-dying spouse in respect of reasonable maintenance until death or remarriage, but only in so far as he or she is unable to provide for their maintenance from his or her own means and earnings.

Various cases have come before the courts since then in regard to certain aspects of the legislation and all of these have a significant bearing on the claim of the surviving spouse which requires expert legal knowledge and experience to deal with to avoid heartache and disappointment.

The right to claim is also is applicable to same-sex partners in a permanent life relationship, as was confirmed in the case of Ripoll-Dausa v Middleton N.O. 2005 (3) SA 141 (C).

In the acrimonious case of Feldman v Oshry N.O. 2009 (6) SA 454 (KZD) a few notable provisions of the Act arose for interpretation and adjudication by the high court and subsequently by the Supreme Court of Appeal.

Firstly, the high court ruled that, in determining whether the surviving spouse was in need of maintenance, no account should be taken of contributions towards the claimant’s maintenance needs by the claimant’s own children.

Secondly, the high court also held that any award of maintenance made by the court in terms of this Act had to be in the form of periodical payments and cannot take the form of a lump-sum payment. This finding was subsequently overturned by the Supreme Court of Appeal which held that a lump sum payment is competent. The appeal court also held at that a donation made to the claimant, but not paid prior to the deceased’s death, had to be paid from the deceased estate.

The appeal court also ordered that the two executors of the deceased estate pay the substantial costs of the appeal de bonis propriis and the cross-appeal de bonis propriis.

It is essential to act expeditiously in the event that you wish to lodge a claim in terms of the Act as deceased estates invariably experience significant delays in the administration thereof and in addition thereto family disputes and litigation occurs very frequently which depletes the assets or value in the estate itself.

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A parenting plan is a useful collaborative contract in regard to the parenting arrangements agreed to by parents at the end of a relationship.

In this instance it is also important to note that it is not exclusive to divorce proceedings but can be applied to un-couplings and indeed also to relationships where the parents have never lived together in one household or at all.

In the event that a parenting plan is agreed to it is apposite to note that a parenting plan has greater impact in law when it has been made an order of a competent court than when it has only been registered with the Family Advocate’s Office.

Thus, it is imperative that an expert such as an attorney specializing in family law be engaged to attend to, inter alia, the consultations, drafting of and registration of parenting plans.

Competent, thoughtful and skilled drafting of legal documents is a pre-requisite for any legal agreement that is reduced to writing and these attributes are only acquired through years of knowledge and experience gained in the practice of law.

In cases where a divorce has already been decreed, a parenting plan can still be drafted thereafter and registered with the Family Advocate’s Office following the engagement and attendance of the attorney who is an expert is such matters as this provides the clients with an assurance that the matter will be dealt with professionally.

It is important to comply with the applicable law and standard documentation prescribed by law.

Various terms must be documented in regard to, inter alia, living arrangements, maintenance and parental contact and so forth with the pertinent issues being inter alia:

• where and with whom the child(ren) is(are) to live;
• how responsibility for the maintenance of the child(ren) is to be divided;
• contact arrangements in regard to the child(ren);
• daily routines;
• behavioural aspects;
• provisions regarding mutual respect and co-operation;
• frequency of communications;
• provisions in regard to schooling and religious upbringing of the child(ren).

Most if not all of the material issues in regard to the above will be included the parties settlement agreement, in the event of a divorce, with a parenting plan providing slightly more detail in that regard. Once the plan is finalized and signed by both parents, it becomes a legally binding agreement inter partes.

Upon filing with the Family Advocate’s Office, the agreement will be perused and considered in various respects and recommendations may be made if necessary and the parties can apply for the plan to be made an order of the court.

It is apposite to understand that there is no one type fits all parenting plan or set list of terms in regard to a parenting plan.

Equally important is that the parties to the parenting plan are permitted by law to re-assess the parenting plan from time to time to adapt to changing circumstances and life events.

There is also no need to go overboard in regard to the particularity of the terms of parenting plans such as the brushing of the child(ren)’s hair, clothes to be worn and styling thereof, lacing of shoes, etc etc as these are within the individual parents discretion in terms of their views on life and the child(ren)’s feelings, which are in a constant state of flux.

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