My ex-husband, who is an attorney and drafted our divorce settlement, has recently claimed that he is over-paying for child maintenance after 2 years of being divorced.  He pays a cash sum every month for our 2 kids (which includes kids clothing).  Since the beginning of the divorce, he verbally agreed to pay for 50% of all kids lothing.  This being in addition to the monthly cash maintenance.  Every time I have bought the kids clothes, I have confirmed that he is ok with the purchase, then provide him with a copy of the store receipt together with an invoice for 50% of the costs.  I acknowledge he has technically been paying "twice", but this was done willingly and knowingly by him for the last 2 years.  I viewed this as an act of good faith.  

He claims to now have gone back to the settlement agreement and realises he’s been over paying and wants to stop paying the 50% contribution to kids clothes.  My thinking is that he has created a precedence by willingly doing this for the last 2 years?  I would obviously want him to continue paying both as he has been.

What advise can you offer and how would this be viewed in court?

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. 

I agree that it sounds like he has been paying "twice" for the kids clothes as an act of good faith. The problem is that, legally speaking, his good faith could change at a moment's notice. The only way to obtain certainty in relation to monthly payments is for the agreement to be recorded in the maintenance order. Then there is no debate around it. 

In my opinion, and based on what you've explained, he would be entitled to stop paying the additional 50% contribution towards the kids clothing if he wants to. Primarily because such payment is not in the maintenance order. 

Unfortunately, no, there is no such precedent which has been created. He has been doing more than the minimum in terms of the maintenance order, and he is legally entitled to refuse to do this anymore, and can default back to the minimum in terms of the order. 

I do not see any way that you can force him to continue with this practice. 

The only thing that you can do is to apply to the maintenance court for a variation of the monthly maintenance, in order to increase the maintenance amount, but you will need to justify the increased maintenance amount, and he will have the opportunity to object to the increased maintenance amount request. Ultimately, the maintenance officer will need to consider the facts and make a decision as to what is fair and reasonable. 

The maintenance officer wouldn't take into account the fact that he has previously been paid for clothing twice. The maintenance officer will only look at the facts at hand to see - (i) what your child needs, and (ii) whether your ex-husband can afford it.