Asked by DCameron1973 on 16-09-2014 12:38:36
Question posted in the Family Law category relating to Gauteng
Question posted in the Family Law category relating to Gauteng
Good day
I would appreciate your advice on a maintenance issue.
My husband was married previously, divorced about 12 years ago. He had 2 children from his first marriage. In terms of the divorce agreement, his ex-wife took custody of the children who then lived with her and he paid maintenance for the children to her. The eldest child is now 22. Two years ago, it was agreed that the son, now 16 years old, would come to live with my husband and I, and that his ex-wife would pay maintenance to us.
I am the breadwinner in our household, and my salary is substantially more than either my husband's or his ex-wife's (I would estimate their salaries to be quite equal). Over the years, I have therefore contributed quite significantly to the children's costs and have generally subsidised my husband's maintenance payments as well as paying for additional expenses for the children. This has never been an issue.
However, since the son has come to live with us, the ex-wife is paying less in maintenance to us than we were previously paying to her. I estimate the most basic living and schooling expenses of my stepson to be about R8,000 per month. Currently, his mother is paying maintenance of R2,400. Our requests for increased maintenance or payment of other additional expenses (such as exam fees) have been flatly ignored by her.
I am therefore in a situation where I am subsidising not only my husband's contribution to his son, but now I am also subsidising his ex-wife's maintenance to her own son. Next year, my husband will be starting up his own business and I don't expect he will be earning a salary for several months. I will of course support his obligations to his son over thsi period, but I would like to understand my legal position in relation to the ex-wife.
Do I have a financial / legal responsibility towards my stepson?
Given that I am a higher earner than the mother or father, will a court expect that I should contribute to the expenses of my stepson? (As I've said, I am happy to carry the costs of my husband's share, but not so happy to carry the costs of the mother's share.)
Would it be advisable for us to take the mother to court for increased maintenance payments under these circustmances?
Thank you for your assistance.
Donne
I would appreciate your advice on a maintenance issue.
My husband was married previously, divorced about 12 years ago. He had 2 children from his first marriage. In terms of the divorce agreement, his ex-wife took custody of the children who then lived with her and he paid maintenance for the children to her. The eldest child is now 22. Two years ago, it was agreed that the son, now 16 years old, would come to live with my husband and I, and that his ex-wife would pay maintenance to us.
I am the breadwinner in our household, and my salary is substantially more than either my husband's or his ex-wife's (I would estimate their salaries to be quite equal). Over the years, I have therefore contributed quite significantly to the children's costs and have generally subsidised my husband's maintenance payments as well as paying for additional expenses for the children. This has never been an issue.
However, since the son has come to live with us, the ex-wife is paying less in maintenance to us than we were previously paying to her. I estimate the most basic living and schooling expenses of my stepson to be about R8,000 per month. Currently, his mother is paying maintenance of R2,400. Our requests for increased maintenance or payment of other additional expenses (such as exam fees) have been flatly ignored by her.
I am therefore in a situation where I am subsidising not only my husband's contribution to his son, but now I am also subsidising his ex-wife's maintenance to her own son. Next year, my husband will be starting up his own business and I don't expect he will be earning a salary for several months. I will of course support his obligations to his son over thsi period, but I would like to understand my legal position in relation to the ex-wife.
Do I have a financial / legal responsibility towards my stepson?
Given that I am a higher earner than the mother or father, will a court expect that I should contribute to the expenses of my stepson? (As I've said, I am happy to carry the costs of my husband's share, but not so happy to carry the costs of the mother's share.)
Would it be advisable for us to take the mother to court for increased maintenance payments under these circustmances?
Thank you for your assistance.
Donne
Message from the Lawyer
Posted by Att. Patrick on 16-09-2014 14:59:13
Hi there and thank you for your question,
By way of an initial question, was your husband not paying to his ex-wife maintenance for 2 kids, but now that one is an adult his ex-wife is paying maintenance to your husband for only 1 of the children? That would therefore be half of what he used to pay her?
Also, was the maintenance payments determined between the parties? i.e. Is there a Court Order confirming the maintenance amounts, etc ... or did your husband and his ex-wife just decide it themselves?
Do I have a financial / legal responsibility towards my stepson? -- If you have adopted your husband's child, then yes, you would be legally obliged to maintain him as your own child. If you have not adopted your husband's child, then no, you would not (legally) be obliged to maintain him. The only persons that would be legally required to maintain him is his parents.
Given that I am a higher earner than the mother or father, will a court expect that I should contribute to the expenses of my stepson? (As I've said, I am happy to carry the costs of my husband's share, but not so happy to carry the costs of the mother's share.) -- Again, have you adopted him?
This is a further information request. Please continue in this same question conversation so that I can see your reply.
Att. Patrick
By way of an initial question, was your husband not paying to his ex-wife maintenance for 2 kids, but now that one is an adult his ex-wife is paying maintenance to your husband for only 1 of the children? That would therefore be half of what he used to pay her?
Also, was the maintenance payments determined between the parties? i.e. Is there a Court Order confirming the maintenance amounts, etc ... or did your husband and his ex-wife just decide it themselves?
Do I have a financial / legal responsibility towards my stepson? -- If you have adopted your husband's child, then yes, you would be legally obliged to maintain him as your own child. If you have not adopted your husband's child, then no, you would not (legally) be obliged to maintain him. The only persons that would be legally required to maintain him is his parents.
Given that I am a higher earner than the mother or father, will a court expect that I should contribute to the expenses of my stepson? (As I've said, I am happy to carry the costs of my husband's share, but not so happy to carry the costs of the mother's share.) -- Again, have you adopted him?
This is a further information request. Please continue in this same question conversation so that I can see your reply.
Att. Patrick
Message from the client
Hi Patrick
1. The eldest child is at university and we pay support directly to her. So yes, we are expecting payment of maintenance for only one child, ie half of what what my husband was paying when both children were living with his ex-wife.
2. The court set an amount of maintenance per child (plus medical expenses) in the original divorce order 12 years ago. Over the years, my husband adjusted his payments to take into account cost of living increases and changes in circumstances. He also frequently made additional payments for extra mural activities or other ad hoc expenses related to the children. When the son came to live with us, he and his ex-wife made an informal agreement that the obligations would directly "swop", ie the son lives with us and she pays what my husband was paying, which included medical aid. She is now paying the basic maintenance amount as at the time the son came to live with us. However, she has refused to contribute to medical expenses or any additional costs related to the son, nor has she adjusted her payment for inflation.
3. I have not adopted my stepson.
Thank you.
Donne
1. The eldest child is at university and we pay support directly to her. So yes, we are expecting payment of maintenance for only one child, ie half of what what my husband was paying when both children were living with his ex-wife.
2. The court set an amount of maintenance per child (plus medical expenses) in the original divorce order 12 years ago. Over the years, my husband adjusted his payments to take into account cost of living increases and changes in circumstances. He also frequently made additional payments for extra mural activities or other ad hoc expenses related to the children. When the son came to live with us, he and his ex-wife made an informal agreement that the obligations would directly "swop", ie the son lives with us and she pays what my husband was paying, which included medical aid. She is now paying the basic maintenance amount as at the time the son came to live with us. However, she has refused to contribute to medical expenses or any additional costs related to the son, nor has she adjusted her payment for inflation.
3. I have not adopted my stepson.
Thank you.
Donne
Message from the Lawyer
Posted by Att. Patrick on 17-09-2014 10:49:49
Hi there Donne,
Thank you for the extra information.
Would it be advisable for us to take the mother to court for increased maintenance payments under these circustmances? --> Yes, the best advice that I have for you (given that your husband is going to be out of a salary for a few months) is for your husband to approach the Maintenance Court together with a copy of the divorce court order and ask the Maintance Officer to amend the court order directing that your husband's ex-wife pay him maintenance plus the inflationary adjustments. This may require a NEW maintenance application being brought by your husband, which will need to be served on his ex-wife. He'll need to do this because the ex-wife and him are unable to reach any agreement.
Given that I am a higher earner than the mother or father, will a court expect that I should contribute to the expenses of my stepson? (As I've said, I am happy to carry the costs of my husband's share, but not so happy to carry the costs of the mother's share.) --> The amount of your salary does not come into the equation, for the simple reason that you are under no legal obligation to support your husband's son. i.e. your "stepson", even though he has not been adopted by you.
Prior to visiting the Maintenance Court, do you not think that your husband should have one last go at negotiating something with the ex-wife? Maybe she can increase the monthly payments to R6,000.00, and then ignore the medical aid contribution, or something like that? Going to Court is time consuming, and what happens if the Magistrate only makes an order for R6,000.00 -- then what?
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 for the extra information.
Would it be advisable for us to take the mother to court for increased maintenance payments under these circustmances? --> Yes, the best advice that I have for you (given that your husband is going to be out of a salary for a few months) is for your husband to approach the Maintenance Court together with a copy of the divorce court order and ask the Maintance Officer to amend the court order directing that your husband's ex-wife pay him maintenance plus the inflationary adjustments. This may require a NEW maintenance application being brought by your husband, which will need to be served on his ex-wife. He'll need to do this because the ex-wife and him are unable to reach any agreement.
Given that I am a higher earner than the mother or father, will a court expect that I should contribute to the expenses of my stepson? (As I've said, I am happy to carry the costs of my husband's share, but not so happy to carry the costs of the mother's share.) --> The amount of your salary does not come into the equation, for the simple reason that you are under no legal obligation to support your husband's son. i.e. your "stepson", even though he has not been adopted by you.
Prior to visiting the Maintenance Court, do you not think that your husband should have one last go at negotiating something with the ex-wife? Maybe she can increase the monthly payments to R6,000.00, and then ignore the medical aid contribution, or something like that? Going to Court is time consuming, and what happens if the Magistrate only makes an order for R6,000.00 -- then what?
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 client
Hi Patrick
Thank you for your response and advice - it's much appreciated.
We will certainly make another attempt at negotiating with the mother - it's just really useful to understand our legal position before we do so.
Could I please just confirm that I understand the issue around my earnings. I understand that I have no legal obligation to support my husband's son and that this responsibility is shared by the mother and father. However, I just want to check whether there is a chance that a court, if we had to go that route, would take my earnings into account as a factor in determining my husband's ability to pay maintenance. As I said previously, we do not wish to put an undue burden on his ex-wife (I will cover his share of the maintenance) but I do wish for her to take a proper 50% responsibility for the financial expenses of her son.
Thank you again,
Donne
Thank you for your response and advice - it's much appreciated.
We will certainly make another attempt at negotiating with the mother - it's just really useful to understand our legal position before we do so.
Could I please just confirm that I understand the issue around my earnings. I understand that I have no legal obligation to support my husband's son and that this responsibility is shared by the mother and father. However, I just want to check whether there is a chance that a court, if we had to go that route, would take my earnings into account as a factor in determining my husband's ability to pay maintenance. As I said previously, we do not wish to put an undue burden on his ex-wife (I will cover his share of the maintenance) but I do wish for her to take a proper 50% responsibility for the financial expenses of her son.
Thank you again,
Donne
Message from the Lawyer
Posted by Att. Patrick on 17-09-2014 18:40:02
Hi there,
However, I just want to check whether there is a chance that a court, if we had to go that route, would take my earnings into account as a factor in determining my husband's ability to pay maintenance. As I said previously, we do not wish to put an undue burden on his ex-wife (I will cover his share of the maintenance) but I do wish for her to take a proper 50% responsibility for the financial expenses of her son.
--> The court will only look at the father and mother's financial standings, and their income earning ability, and their expenses, in order to determine the maintenance payable by each party. If the father has somebody (like you) who pays towards things that he indirectly benefits from (e.g. rent, food, etc) then the father's "needs" decreases, and the court will then find that he is able to contribute towards maintenance. The same will apply to the mother of the child.
Indirectly your income will be taken into account, but only in the sense that the father does not have to directly incur so many expenses.
For example: If a man earns R10,000 per month, and ALL of his monthly expenses are paid for by his parents, then he can afford to contribute more towards maintenance. If he earns R10,000 per month but has R8,000 of monthly expenses, then he can't afford to pay that much.
So, indirectly, the fact that his parents are paying his monthly expenses, affects his maintenance obligations!
Basically your husband needs to say that he isn't going to be earning that much, and while he is benefiting from living with you, his child can't rely on you for support, so the child's mother (his ex-wife) needs to help him support the child.
Good luck!
However, I just want to check whether there is a chance that a court, if we had to go that route, would take my earnings into account as a factor in determining my husband's ability to pay maintenance. As I said previously, we do not wish to put an undue burden on his ex-wife (I will cover his share of the maintenance) but I do wish for her to take a proper 50% responsibility for the financial expenses of her son.
--> The court will only look at the father and mother's financial standings, and their income earning ability, and their expenses, in order to determine the maintenance payable by each party. If the father has somebody (like you) who pays towards things that he indirectly benefits from (e.g. rent, food, etc) then the father's "needs" decreases, and the court will then find that he is able to contribute towards maintenance. The same will apply to the mother of the child.
Indirectly your income will be taken into account, but only in the sense that the father does not have to directly incur so many expenses.
For example: If a man earns R10,000 per month, and ALL of his monthly expenses are paid for by his parents, then he can afford to contribute more towards maintenance. If he earns R10,000 per month but has R8,000 of monthly expenses, then he can't afford to pay that much.
So, indirectly, the fact that his parents are paying his monthly expenses, affects his maintenance obligations!
Basically your husband needs to say that he isn't going to be earning that much, and while he is benefiting from living with you, his child can't rely on you for support, so the child's mother (his ex-wife) needs to help him support the child.
Good luck!
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