Question posted in the Family Law category relating to Eastern Cape
I have a divorce agreement/ settlement in place from 2015 which states that I am the primary caregiver and my ex has the right to see my son - he has now, during covid manipulated the situation that the child is now staying with him (son of 14yrs) - I worked throughout covid and he had an au pair do online schoolomg with the child to "help"me. In our court order it states that he is responsible for all realistic school expenses as well as tertiary education. The child is in a government school and started Grade 8 this week. I paid half the books and half the new school clothes. We have pretty much always halved those. Now my eldest (21) is telling me my ex is saying that since the child is with him all the amounts in the settlement swing to me - Is this so? I would think that for the court to decide. I went along with the child going there because there is more freedom where he lives and during the covid time there was no aftercare therefore he would have been home alone which i didnt want. But now Im hearing I become responsible for the court order amounts he signed to pay - this as decided by him not the court?
Answer to the Question
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.
Parties are allowed to informally vary the terms of a settlement agreement, however that does not formally vary the terms, only a court can do that. Rather, the parties simply informally agree not to comply with the settlement agreement, and rather do something else.
If, in the settlement agreement, it says that you are the primary caregiver, and that the child lives with you, then you would expect another clause saying that your ex-husband must assist with rental, food, etc.
If your ex-husband now becomes the primary caregiver, he could (in theory) apply to court for a variation of the settlement agreement based on this fact, and could ask you to contribute money to him for the child's rental, food, etc.
Until such time as he applies to court for a variation of the settlement agreement, he needs to comply with the terms! Even if he thinks that the terms are now "unfair" because the child is living with him.
If, in the settlement agreement, it says that each of you must contribute towards the joint expenses of the child (e.g. clothing) then who the primary caregiver is doesn't impact on this. You must both still continue to contribute.
In short, he must comply with the terms of the settlement agreement. Something can't just swing around to you.
Also, if he applies for a variation, then the amounts in the settlement agreement would also be recalculated because maybe he was earning more than you.
He can't just substitute the amounts he was ordered to pay as the amounts that you must now pay.
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.
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