We are prior to a divorce. I am self emp...

Asked by Johanvj on 11-01-2021 13:12:01
Question posted in the General Law category relating to Eastern Cape

We are prior to a divorce.  I am self employed and the business income is breaking even or some months not.  How do I calculate my maintenance.  My wife is demainding R2500 towards rent (she pays R5000)  R2000 for her petrol costs. Full skool fees R1050 after care of R470. Half of all expenses towards my child.  Demainds full medical aid. ad R2500 maintenance costs.  I cannot afford this.

Further information relating to Question:

She left the home in July 2020. Unpon departure she said that she arrange for subsidesed schooling and there will be no costs towards schooling.

Information Requested by Lawyer

Posted by Att. Patrick on 11-01-2021 13:24:55

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Att. Patrick

Answer to the Question

Posted by Att. Patrick on 11-01-2021 13:39:19

There are really two questions of maintenance which you need to deal with: her claim for maintenance from you in her personal capacity AND a claim for maintenance by your children.

You need to be aware that, on divorce, your wife will most probably have a claim against you for maintenance. This would be for her own personal needs. It will depend on a number of factors, such as - whether she used to work; whether she worked during the marriage; whether you supported her financially during the marriage; her age; her ability to "return to work" and support herself; etc. The amount of maintenance will also depend on whether she leaves the marriage with a house, or with a large cash payment. Her maintenance claim is based on the fact that you supported her during the marriage, and therefore she is entitled to look to you for support after the marriage as well.  If she used to work, and she can still work, her maintenance claim might only be for a year or two - to give her the time to get herself re-employed and working again.

Lots of divorces are fought purely on the basis of "how much maintenance is enough". Her needs are the first part of the enquiry, however your ability to pay is the second part of the enquiry. If her needs are R50k per month, but your ability is only R5k per month, a court will take this into account in determining what amount is fair and reasonable.

The second maintenance claim which you need to look at is that for your children. Both parents have a duty to support their children until they are self-sufficient. This means that you will need to look after their housing needs; food; clothing; medicine; and education. Again, the court will look at the children's needs (i.e. R2500 for rent; R3000 for food; etc; etc) and the court will then look at the parent's ability to contribute. The difference here is that the court looks at BOTH parent's ability, and can apportion the children's maintenance needs between the parents. 

In other words, if you earn twice what your ex-wife earns, then the court could order you to pay twice what she pays towards the children's maintenance. The important thing is that BOTH parents need to contribute, and that their contributions need to be fair and reasonable.

Personally, this is what I think - 

The rental claim seems pretty reasonable because the R2500 goes towards her rental and the children's portion of the rental.

Her petrol costs seem quite high. You should be contributing towards petrol for her to take the children around. But not towards her petrol. So maybe half of what she is demanding.

You should be paying half of the school fees and aftercare. Not all of it. 

Half of all expenses towards your child - yes.

Demands full medical aid - this is NOT a given!

I assume that you are saying that she also wants R2500 cash per month - not a given, this should be itemised!

If you guys can't come to an agreement as to who pays what, based on your monthly income, then you will need to refer the dispute to the maintenance court for the maintenance officer to make a ruling. But you need to understand that this is a lengthy and difficult process which causes loads of fights!

Information provided by client

Thank you for your input. She is working a steady job. She worked for me in my business before she left. We are married out of comunity of property. She left me with all the debt, not paying 1c towards any debt. I had to move out and now living with my parents because I could not afford to rent a house again. How can I pay towards her rent if I cannot even affort to pay my own rent. I do not have a stable income. I have my own business which after COVID is still not making a positive income. I have a Pub and Grill and a Guesthouse. As you know we are hitting a second waive.
To itemise what she is demanding :
Quite of few household items : which Im granting her.
R1050 school fees - full amount
R2500 maintenance exculating 10% a year till my daughter is in grade 12 - she is 9 years old. Only 1 child
R2500 Rental per month - she only needs a 2 bedroom house as it is only her and my daughter.
R2000 petrol money. She only takes my daughter to school and back which is 5km from her work and house.
Aftercare R490 - full amount
The 50 % off all school trips etc.
50% of all expenses for my Child
Medical Aid.

She also allows me to se my child but I have to fetch her and take her back at my own expense. She lives in Bloemfotein and I live in Colesberg.

I'm making maybe a R2000 profit in a month.

Answer to the Question

Posted by Att. Patrick on 11-01-2021 16:00:01

If you don't have a stable income, then this will affect your ability to pay maintenance. You need to bring this to her attention, and also to the court's attention - if it gets there. 

"She also allows me to se my child but I have to fetch her and take her back at my own expense. She lives in Bloemfotein and I live in Colesberg." --> This is unfortunately normal. You would need to fetch the child from the house and drop the child off again. 

Answer Accepted

This answer was accepted on 12-01-2021 09:03:38

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