Mom has right to take ex-husband’s pension money for maintenance, judge says

The Johannesburg High Court has convicted a father who wanted his ex-wife to notify him of any attempt to obtain an order to pay maintenance arrears. Photo: Ashraf Hendricks/GroundUp/Archive

  • The Johannesburg High Court has ruled that a mother whose ex-husband owes maintenance for their children has the right to take money from her child support without notice.
  • Judge Tina Siwendu denied a request by the father for his ex-wife to give him ten days notice of his attempt to obtain a writ of execution for arrears.
  • The judge said the law did not provide for such notice to be given when there was already a support order.

A mother whose ex-husband owed her child support was legally allowed to withdraw funds from her child support without notice.

It was the result of a ruling by Johannesburg High Court Judge Tina Siwendu, who was hearing an urgent request from the man. He sought an order requiring the mother of his three children to provide him with at least ten days’ notice if she intended to seek a writ of execution to obtain money for arrears.

The judge said there was no law providing for this when there was already a child support court order. Judge Siwendu said that the legislature, in enacting the provisions of the maintenance law, “saw it not to grant him the right of notice in such circumstances”.

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The couple married in 2000 and divorced in 2019.

According to the divorce settlement, the father had to pay 20,000 rand per month for each child, plus medical and school fees.

Judge Siwendu said the father admitted he was in arrears and failed to pay some of the additional expenses. Indeed, he had lost around 30% of his income between April 2020 and January 2021 – around R1 million – due to the Covid pandemic.

He asked his ex-wife for a reduction in child support, but she refused.

He then initiated proceedings in the high and maintenance courts to suspend certain payments and reduce overall maintenance. Both requests were opposed and remain pending.

Then, in February this year, he received a notification from Discovery that almost R550,000 (after tax) had been deducted from his retirement pension.

The amount was paid to his ex-wife following an application, without notice, for a court order allowing her to access his pension.

A month later, he received a text message from her in which she threatened to ask for another order concluding: “Good luck trying to stop the next one”.

Judge Siwendu said this prompted the urgent request to the court.

“His concern is that the premature withdrawal has significantly diminished the value of his investment and is very detrimental to him.”

“He is also concerned that she may also withdraw from another investment (with Stanlib) without giving him notice or being given any opportunity to make representations in court.”

The judge said she agreed the case was urgent because it involved key legal issues that could affect many people with judgments against others over money and those who owed money. the money.

“Furthermore, the issue of child support, the legal method of collecting or recovering arrears, involves the rights and interests of children,” she said.

Read also : Man ordered to pay over R3m in maintenance arrears 29 years after divorce

The judge said that while there may be irreparable harm in enforcing such an order, early withdrawals from annuities could result in early exit fees and tax charges – in this case, the order had was rendered by the magistrate of the interview tribunal.

And the provisions of the law on the obligation of maintenance conferred no right of notice in the event of a maintenance order.

She denied the father’s request.

Read the full judgment here.

This article is licensed under the Creative Commons Attribution-NoDerivatives 4.0 International License.

Read the original on GroundUp here.

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