Help! I can’t afford to pay maintenance for my children!

The parents divorced in 2008. The court ordered the father to pay maintenance for the two children. Two years later, his salary dropped. The next year, his salary dropped again and he went to the maintenance court to have the amount of maintenance reduced. He succeeded, but the matter went on appeal.

The appeal court found that it was true that the father’s salary had dropped, but that alone was not enough to get the amount of maintenance reduced. He also had to prove that he was not able to pay the current maintenance amount ordered by the divorce court.

It also turns out that he had not been honest with the court: the mother discovered that he had received a few lump sum payments but he did not tell the court about this. The appeal court found that this was a factor in the decision to keep the original order as it was.

The appeal court said that the most important factor that a court must look at when there is an application to change a maintenance order, is the needs and welfare of the children.

Some of the principles in maintenance law was confirmed: the payment of maintenance for minor children is a priority in the demands upon the resources of the individual liable for the payment of such maintenance. In other words: maintenance for children is more important than the retirement annuity that the father was paying. The court found that the father could have these payments suspended, so that he can rather pay maintenance. The father said that he had to repay a loan to the grandfather but again, the court found that the maintenance payable to the children trumps this loan repayment. Even the father’s payments for clothes, did not outweigh the children’s maintenance because the interests of the children are paramount. The court also did not have sympathy for his self pity that he could not have any entertainment because he had to pay maintenance first.

A person who wants to change a court order, has to show good cause (or sufficient reason). “Good cause” could be a change in the conditions that existed when the order was made, that would make it unfair if the order remained as it was. (Roos v Roos)

The father lost the appeal and the mother won her cross appeal. The result is that the original court order that was made in the divorce, remained as it was.

Strydom v Strydom (KZN) case no AR 598/2011

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