Asked by the Customer on 23-12-2015 10:17:49
Question posted in the Divorce Law category relating to Gauteng
Question posted in the Divorce Law category relating to Gauteng
Hi,
I have a settlement agreement with my ex-wife where I am paying her maintenance of R15000 a month for two years which will end February 2017. I am also paying maintenance to her for our three children 12, 14, 17 of R21000 per month. We have a settlement agreement which states that if she cohabitates her maintenance will cease immediately (not for the children ofcourse). I pick the children up for school at about 7am, 3 sometimes 4 times a week, at her house where they stay. The boyfriend's car is there everytime i pick up the kids, and weekends he is obviously there as well. I am convinced that he lives there however do not want to ask the children as i know they will lie for their mother. My ex and her boyfriend have been to on overseas holidays twice this year alone, and have taken our kids, and the boyfriends kids and parents to Knysna this December 2015. I am struggling to pay her the maintenance and must stay home as I cannot afford to go away based on my income vs expenses (which are vast). Would I be remise to cease payments as per our agreement?
Looking forward to your reply.
Regards
I have a settlement agreement with my ex-wife where I am paying her maintenance of R15000 a month for two years which will end February 2017. I am also paying maintenance to her for our three children 12, 14, 17 of R21000 per month. We have a settlement agreement which states that if she cohabitates her maintenance will cease immediately (not for the children ofcourse). I pick the children up for school at about 7am, 3 sometimes 4 times a week, at her house where they stay. The boyfriend's car is there everytime i pick up the kids, and weekends he is obviously there as well. I am convinced that he lives there however do not want to ask the children as i know they will lie for their mother. My ex and her boyfriend have been to on overseas holidays twice this year alone, and have taken our kids, and the boyfriends kids and parents to Knysna this December 2015. I am struggling to pay her the maintenance and must stay home as I cannot afford to go away based on my income vs expenses (which are vast). Would I be remise to cease payments as per our agreement?
Looking forward to your reply.
Regards
Message from the Attorney
Posted by Att. Patrick on 23-12-2015 10:58:45
Hi there Daniel and thank you for your question,
My advice is not to simply stop paying her maintenance on your own accord, but rather to get proof that she is cohabitating with the boyfriend. Rather, hire a private detective or investigator to watch their movements, and try to get hard facts that you can take to court to prove the cohabitation.
If I were you, I would then apply to the maintenance court for a variation of the maintenance order on the basis that she is cohabitating with another person. Part of the application would be to include all of the facts that you've gathered. Place everything before the magistrate, and let the magistrate decide.
That would be the "most legal" way for you to do things. Probably the safest way as well.
If you simply stop paying her maintenance each month (obviously carrying on for the kids!) then you'll NEVER be able to prove any cohabitation, for the boyfriend will then stop staying over so often, and it would then become very difficult for a court to rule in your favour.
Rather get the proof first.
OR, what you could do is to apply to court for a variation of the maintenance order so as to reduce the monthly maintenance. The only issue here is that if you wanted to decrease the maintenance, you will need to prove that your financial circumstances have changed. i.e. that you're earning less now. If that is the case, then you can do this!
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.
My advice is not to simply stop paying her maintenance on your own accord, but rather to get proof that she is cohabitating with the boyfriend. Rather, hire a private detective or investigator to watch their movements, and try to get hard facts that you can take to court to prove the cohabitation.
If I were you, I would then apply to the maintenance court for a variation of the maintenance order on the basis that she is cohabitating with another person. Part of the application would be to include all of the facts that you've gathered. Place everything before the magistrate, and let the magistrate decide.
That would be the "most legal" way for you to do things. Probably the safest way as well.
If you simply stop paying her maintenance each month (obviously carrying on for the kids!) then you'll NEVER be able to prove any cohabitation, for the boyfriend will then stop staying over so often, and it would then become very difficult for a court to rule in your favour.
Rather get the proof first.
OR, what you could do is to apply to court for a variation of the maintenance order so as to reduce the monthly maintenance. The only issue here is that if you wanted to decrease the maintenance, you will need to prove that your financial circumstances have changed. i.e. that you're earning less now. If that is the case, then you can do this!
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.
Message from the Customer
Hi Patrick, my concern with using your approach is that it could take a long time to get to the point of not paying. I have also been advised by both, a lawyer and the mediator who drafted our settlement agreement that my ex has breached our agreement and that I am within my rights to cease payment with immediate effect.
The proof I have is my own testimony, and if need be I could call my children to the stand in order to testify (obviously I would not want to do this).
The process forward would be for her to defend her position and prove to me that she is not cohabiting.
Your final thoughts would be appreciated.
Regards
The proof I have is my own testimony, and if need be I could call my children to the stand in order to testify (obviously I would not want to do this).
The process forward would be for her to defend her position and prove to me that she is not cohabiting.
Your final thoughts would be appreciated.
Regards
Message from the Attorney
Posted by Att. Patrick on 23-12-2015 16:57:18
I hear what you are saying. The factual question that will need to be proven by either you or your ex-wife is "Factually, is your ex-wife cohabitating with another man?"
Your ex-wife could argue that she is not cohabitating, but rather the boyfriend is staying over on 2 or 3 nights a week.
You would argue that she is cohabitating, and that the boyfiend is actually living with her.
The whole dispute comes down to the facts. I always say in my practice, "get the facts before the facts get you."
That's always my approach, and maybe I am cautious in my approach, but it often is successful.
If you wanted to stop paying then do that. Your ex-wife would then need to allege that she isn't cohabitating with another man, and you will need to prove the opposite. My concern is that if all the evidence you have is your own testimony, against your ex-wife's testimony, you may come up short.
Hence my suggestion at getting some proof. Even if you do your own investigative work, and keep a diary for 10 days, and log when the boyfriend stays over - that might assist more. Also, if you can find out if the boyfriend still has his own place? Or has he "moved in" with your ex-wife.
The more facts you get the stronger your case!
Your ex-wife could argue that she is not cohabitating, but rather the boyfriend is staying over on 2 or 3 nights a week.
You would argue that she is cohabitating, and that the boyfiend is actually living with her.
The whole dispute comes down to the facts. I always say in my practice, "get the facts before the facts get you."
That's always my approach, and maybe I am cautious in my approach, but it often is successful.
If you wanted to stop paying then do that. Your ex-wife would then need to allege that she isn't cohabitating with another man, and you will need to prove the opposite. My concern is that if all the evidence you have is your own testimony, against your ex-wife's testimony, you may come up short.
Hence my suggestion at getting some proof. Even if you do your own investigative work, and keep a diary for 10 days, and log when the boyfriend stays over - that might assist more. Also, if you can find out if the boyfriend still has his own place? Or has he "moved in" with your ex-wife.
The more facts you get the stronger your case!
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