HOW TO APPLY FOR SPOUSAL MAINTENANCE?

Wed, 04 Apr 2018 15:05:14 +0000

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

An application for maintenance can be made against a defendant (person who must pay maintenance) at any Maintenance Court (“court”) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

The parents, guardians and/or caregivers of a child can apply for maintenance on behalf of such a child.

What should a person take to court when applying for maintenance?

Identity document of the complainant.
Complainant’s contact details, such as telephone numbers and home and work addresses.
If maintenance for a child is claimed, the birth certificate of that child.
If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
A full list of expenses and any proof of same, such as receipts.
The complainant’s payslip and proof of any other income.
As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

The maintenance officer will inform the defendant of the application and will hold an informal enquiry with the complainant and defendant being present.
The defendant must take any proof of his/her income and expenses to the informal enquiry.
The purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement.
If a settlement is reached, an agreement will be entered into between the complainant and the defendant, which will be made an order of court.
If a settlement cannot be reached, the maintenance officer will place the matter before court for a formal enquiry to be held.
The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
The complainant and the defendant must both be present at the informal and formal enquiry, and will be allowed to have legal representation.
If the defendant fails to appear at the formal enquiry in court, an order may be given in his/her absence.
It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being granted.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Justice.co.za

Legalwise.co.za

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AM I STILL LIABLE FOR MY SPOUSE’S DEBT AFTER DIVORCE?

Thu, 07 Dec 2017 14:06:37 +0000

A husband and wife buy a house together. Their marriage takes a tumble, along with their finances, and they have to sell their home and are left with an outstanding mortgage bond. They subsequently got divorced. The couple is concerned about what will happen to the debts and who will be responsible for paying them.

Who pays what after divorce?

If the couple was married in community of property, the debt on the property is a joint debt. They will be jointly and severally liable. This means that each partner is not just liable for half the debt now that they are divorced, in fact the bank can seek the full amount from either of them. The one spouse who is held liable by the bank would then have a claim of 50% of the debt against the other, but it would be his or her responsibility to collect that debt (not the bank’s). Alternatively, the bank may agree to accept 50% from one person and release them from the liability, but it does not have to.

Sometimes, the divorce settlement makes a special mention of the mortgage. But if there is no clause in the divorce, the joint liability principle applies. After a divorce, the husband and wife should present their bank with a copy of the divorce settlement. This will remove any uncertainty about ownership and liability for bond payments.

Getting divorced while under debt review

If you get divorced while you are under debt review and you have the debt review court order in place, then this will need to be rescinded and for new debt counselling applications to be started, as in order to follow on with the debt counselling process you will need to reapply, but will now need to be seen as two single applications. A new budget and new proposals will also have to be drawn up.

References:

“Debt And Divorce”. News24. N.p., 2017. Web. 12 June 2017.

“Debt Review After A Divorce Settlement – Debt Review”. Debtbusters. N.p., 2017. Web. 13 June 2017.

The post AM I STILL LIABLE FOR MY SPOUSE’S DEBT AFTER DIVORCE? appeared first on Smuts & Co Attorneys.

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HOW TO APPLY FOR SPOUSAL MAINTENANCE?

AM I STILL LIABLE FOR MY SPOUSE’S DEBT AFTER DIVORCE?