Asked by the Customer on 19-12-2015 12:25:07
Question posted in the Divorce Law category relating to Western Cape

Good Morning.

I was divorced in July this year. I was ordered to pay a lump sum, sign over a plot of land, give her certain furniture and pay a monthly maintenance to her (no children involved). I have complied fully.

On Thursday I received a directive to appear in the Germiston court in January. (I live in Simonstown). She is asking that I quadruple the maintenance to a sum equal to my entire monthly pension.

I have tried to communicate with the "maintenance officer". Phone does not get answered. I have sent a fax and a registered letter and am unable to find an email address.

In her statement about assets and expenses she has been dishonest.

The entire tone of the matter implies that I am somehow guilty of something, but I have complied 100% with the divorce order.

Kindly assist

Further information relating to Question:

Since separating, and subsequently divorcing she appears to have not worked and seems to believe that I must pay her enough to live on

Fax I sent to Maintenance Officer:


Dear Sir/Madame

Today I received a directive to present myself at Room 19 of the Germiston Magistrates Court on 12/January/2016 to answer to a "complaint" about maintenance.

(Reference 14/3/2 - 679/15)

The following is most relevant

1) I was officially divorced on 7 July 2015

2) I was instructed to pay a lump sum to my wife, arrange for a property to be transferred into her name, allow her to remove various items of furniture and to pay maintenance each month

3) I complied fully with all instructions

4) I have now been directed to appear due to a "complaint" by my ex-wife in which she requests more than a 400% increase in maintenance

5) She has submitted under oath details of her assets which are clearly inaccurate as no mention is made of furniture or the plot of land.

6) She is basing her claim on submitted details of monthly expenditure which are clearly inaccurate.

7) As it is the evening of the 17 December I clearly have no time to arrange any form of defence

8) It is not possible for me to appear in Germiston on 12/01/2016 (I live in Simonstown )


I do not understand how a court order issued just 5 months ago in which R7000 a month maintenance and a lump sum payment of R1 000 000 can be replaced barely 5 months later with a request for maintenance of over R30 000 a month. I am a pensioner whose entire pension income is around R30 000 a month

I request that her request either be removed from the system entirely or that this case be postponed for at least two months.

I also understand that as a pensioner when I am required to travel I am entitled to request travelling expenses and legal aid. I would appreciate comments on this.

May I request that you please acknowledge receipt hereof via email. My email address is: ***BLOCKED-EMAIL-ADDRESS***

Your faithfully

Jonathan AH Golding

ID 5012255075087

Posted by Att. Patrick on 19-12-2015 14:02:29

Hi there and thank you for your question,

I'm sorry to hear about your issues that you're having with your ex-wife and the maintenance complaint.

The first issue that I have with the notice that you received, is the jurisdiction of the Germiston Magistrates Court. The Magistrates court will (like all magistrates courts) only hear/entertain applications where the court has jurisdiction. To have jurisdiction, the rules of court state that either the defendant needs to reside within the geographic region of the court, or the whole cause of action arose within the geographic region of the court.

The whole cause of issue didn't arise in Germiston, so that's out.

Also, you don't live in the geographic region of Germiston, so that's out as well.

Therefore your simple defence to the application for an increase in maintenance, is that the Germiston Magistrates court does not have the jurisdiction to hear the matter. If yoru ex-wife wants to bring a maintenance claim, she would need to do so in the Simonstown Magistrates court.

In practice, the court should raise this issue on its own accord. The court should tell your ex-wife (without you even being there) that it doesn't have jurisdiction because you don't live there. But, whether a court WILL do this (i.e. 100% certain) I don't know. They should!

You could write a second letter to that maintenance officer and explain the above. That might be sufficient.

Secondly, what was the document that was actually served on you?  Also who served it on you?

Further than that, your ex-wife is going to have a steep battle to convince the court that the maintenance order should be amended to SUCH an extent that the maintenance is increased from R7k to R30k per month. I don't know HOW she will be able to do this.

Also, you should keep in mind that her "needs" are only the first part of the enquiry. Your ability to pay is the second part of the enquiry. The court needs to strike a balance between the two!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Thank you. Your response is most helpful and very welcome.

The document is entitled "Directive by maintenance officer in terms of regulation 3(1) read with section 6 and section 44 of the maintenance act 99 of 1998". It was served by the sheriff

What I really need now is to know how to communicate with the court so that I don't appear bu am not in contempt or "guilty" of anything.

Thanks again

Lastly - how do I ensure that the court / maintenance officer has received this info / my response? He/she doesn't answer the phone, I cannot find an email address and I have not had a response to the fax. I am aware that we are in the "holiday period" but really need a medium of communication that ensures my information is being received and processed.

Thanks again

Posted by Att. Patrick on 19-12-2015 17:25:42

Hi again,

Okay, so what's happening is that the maintenance officer is conducting an enquiry into your ex-wife's maintenance complaint. Part of the powers that the maintenance officer can subpoena both persons and documents to be made available.

Until 4 January there is no good way to get hold of the maintenance officer. There really isn't. What I would suggest is that you hire an attorney in Germiston who deals with the maintenance court to go to court and speak to the maintenance officer. In that way you will spend some money, but you will have certainty as to what's happening.

If you can get hold of the maintenance officer, my suggestion is to ask him whether you can make an affidavit setting out your financial ability, and background facts, and that he reads the affidavit prior to you having to appear.

You need to tell the maintenance officer that you can't afford to travel to Germiston as you are retired and live in Simonstown. Ask the maintenance officer if you can't rather appear in Simonstown to give evidence.

Good evening,

Sorry, I am now a little confused. In your first response (which put mind at ease) I understood you to say that the Germiston court does not have jurisdiction and therefore cannot hear this case? Whilst I am grateful for your responses you now seem to be telling me to hire a lawyer to represent me in Germiston?

I am more than happy to prepare an affidavit, but am still confounded that just 5 months after a court ruling any court should even be entertaining such a request by her. If they do, what stops her from doing this on a regular basis? My circumstances (particularly financially) have not altered since the divorce and are not going to (I am retired) so why should I EVER be subjected to such demands?

Kind Regards

Posted by Att. Patrick on 20-12-2015 10:14:55

If it was a straight magistrates court case, a civil case, then the Germiston court would not have jurisdiction to hear the case. But this appears to be a maintenance court case, where, in terms of the maintenance act, the maintenance officer does have the power to subpoena witnesses to testify at the case. The maintenance court unfortunately has these powers which they can exercise in the jurisdiction in which the complainant lives! That means that the Germiston maintenance court can deal with the matter.

From the notice heading that you said just above, it's clear that you are being subpoenaed to appear. If you ignore the subpoena, then you can be arrested and "brought" before the court. Hence my suggestion that you hire an attorney to deal directly with the maintenance officer on your behalf to explain that you can't afford to travel to Germiston, and that her complaint should be thrown out as it is only 5 months after your divorce!

Thanks. That clarifies matters but does give me a headache!

The process of engaging a lawyer in Germiston at this time of the year is going to be difficult and probably pretty costly.
It seems that the process is deeply flawed and that it is ignoring the background, viz that the divorce was only 5 months ago, that she has done nothing about getting employment, that I am a pensioner and am "earning" the same as I was at the time the divorce was processed, that she is asking for me to pay over my entire pension and that I live in Simonstown.

That she should be "allowed" to present a case (i.e. that she has no assets) 5 months after receiving R1 million, a plot of land and all sorts of furniture (including PC, TV, etc.) annoys me.
What angers me the most is that the same process appears to have been invoked that is use to deal with a maintenance defaulter which I am not.

I am left with a major question: After many months of wrangling, a divorce settlement is agreed and processed, yet she can bring such an action to challenge the agreed settlement to the court at any time let alone just 5 months later. Does this put me at risk of facing such at various times in the future? Surely the settlement should have been seen as "full and final"?

MOST IMPORTANTLY:

The divorce papers state:

"FULL AND FINAL SETTLEMENT

THE PARTIES HERETO RECORD THAT THIS AGREEMENT IS CONCLUDED IN FULL AND FINAL SETTLEMENT OF ALL AND ANY CLAIMS, WHICH EITHER PARTY MAY HAVE AGAINST THE OTHER WHEN AND HOWEVER ARISING"

As a layman I interpret this clause as a way of preventing the kind of action she is instituting. Am I wrong?

Posted by Att. Patrick on 20-12-2015 11:30:46

I understand that as a layman you are interpreting the clause in a certain degree, but unfortunately the duty of a spouse to maintain the other spouse continues (by operation of law) after a divorce. A court order in the divorce saying "in full and final settlement" really means in relation to capital claims that the one has against the other. Maintenance claims continue. The crux is that the maintenance claim will need to be proven by the party requesting it.

Also, she can bring a claim like this whenever she wants. You can't bar her from approaching the court for relief. The maintenance officer will need to investigate the complaint. Hopefully once he does, he might say that the complaint is baseless and dismiss it?

Thank you. I remain a layman and you are obviously qualified and experienced. However, this really does not make sense. The clear intent of the divorce decree was for it to be "final".

It states: " in full and final settlement of ALL and ANY claims which either party may have against the other WHEN and HOWEVER arising". It also states: " No addition to, alteration, variation, cancellation of this Agreement shall be of ANY force or effect unless reduced in writing and signed by both parties"

Surely, she is attempting to "alter" the terms of the decree.

Furthermore, she is using an approach clearly designed to enforce a maintenance defaulter into meeting his obligation or where circumstances have changed materially.

I am being forced into a time consuming and potentially costly process which appears unwarranted (even frivolous) and a waste of the court's time. Should I be contemplating some form of counter-action?

If I must go the route of engaging a lawyer, can you recommend someone and maybe facilitate something please?

Thanks again for your assistance and patience

Posted by Att. Patrick on 21-12-2015 17:17:30

You are quoting the standard non-variation clause. "unless reduced in writing and signed by both parties"  There is scope that it be amended, but it'll need to be reduced to writing.

I do realise that it is a time consuming and costly process, but unfortunately that is what the law provides for. If the court thinks it a waste of its time, it can make a costs order against her. But it is in the discretion of the court.

I can't refer you to a specific attorney, but I can direct you to the following two websites, www.findanattorney.co.za OR www.attorneys.co.za, where you can find a list of qualified attorneys in your area who will be able to assist you further!

Sorry - I am not understanding why this should go to court and need a clear legal view on this which hopefully supports my view which I have attempted to communicate to the court (although I don't know whether my faxes or emails have got to anybody!).

The two clauses in the divorce decree - the one which says it is a "Full and Final settlement" and the other which says that NO alterations are possible without both parties signing (i.e. agreeing) would appear to make it abundantly clear that this should have been the end of her making any further demands on me.

It is my understanding that the intent of the decree was to prevent the action she is bringing about.

Why then should there be any kind of hearing or has the Maintenance Officer simply not read the divorce document.

Posted by Att. Patrick on 23-12-2015 10:03:24

Look, at the end of the day ANY dispute that your ex-wife makes against you in relation to maintenance can go to court. Whether the dispute is a good dispute, or whether she is making stuff up and lying to the court. That's just unfortunately the way things go. Everybody has the right to have their dispute adjudicated in court.

The reason that people include a non-variation clause in a contract, is and so verbal amendments to the contract won't have standing - only written amendments that are signed by the parties.

Your ex-wife is not attempting to vary your divorce order. i.e. by claiming additional capital, or pension fund, etc, etc.

She is claiming additional monthly maintenance. She is unfortunately entitled to do that.

If the divorce order said that she doesn't get any maintenance, then your arguments would be good arguments. If however the divorce order says that she should get some maintenance, then her argument are good. i.e. she needs more. There is nothing stopping you from fighting her claims - which is what I'm suggesting that you do.