I can no longer afford to pay maintenance, what should I do?

It so often occurs that the financial circumstances of the party responsible for paying maintenance may change and resultantly the party may no longer be able to meet his or her maintenance obligations in terms of the maintenance order. Section 31 of the Maintenance Act renders any failure to comply with a maintenance order a criminal offence punishable by up to 3 years of imprisonment. It is, therefore, imperative for a person who is no longer able to afford to pay maintenance to use the avenues available to him or her in terms of the law.

Substitution or Discharge of a Maintenance Order

The Maintenance Act confers on Maintenance Courts the power to vary or discharge maintenance orders including maintenance orders made by the High Court.

Spousal Maintenance

In terms of section 8 of the Divorce Act, a maintenance order may be rescinded, varied or suspended if there exists  ‘sufficient reason’ to do so. This could also be read together with section 6 of the Maintenance Act which provides that a maintenance order can be substituted or discharged if ‘good cause’ is shown. South African courts have accepted the view that it is not possible to give a precise definition to the term ‘sufficient reason’ (good cause) and that the circumstances of each case must be considered.

In the case of Havenga v Havenga Harms J held that, in general, in the absence of a real change in circumstances there would not be sufficient reason for the variation or rescission of a maintenance order. However, a change in circumstances is not a statutory requirement and there might be any other sufficient reason for a maintenance order to be varied.

In light of the above-mentioned, it stands to reason that a change in one’s financial circumstances can be a factor to consider whether sufficient reason (good cause) exists for one to obtain a reduction in spousal maintenance.

Child Maintenance

It is important to distinguish the variation of maintenance orders in respect of child maintenance from the variation of maintenance orders in respect of spousal maintenance. The duty to maintain a child derives from common law and not from the statute. In addition to good cause, the court will also consider whether it will be detrimental to the child’s best interest if the court grants an order for the reduction of maintenance. In Hossack v Hossack the court held that the needs of the minor children and the ability of the maintenance debtor to pay constitute ‘good cause’ for a variation.  Furthermore, in Vedovato v Vedevato the court emphasised that once ‘good cause’ is shown, the factors that then primarily need to be considered are the needs of the children.

Conclusion

In light of the above, it is evident that our law does provide for an avenue that a  maintenance debtor who can no longer afford to pay maintenance could pursue. In respect of spousal maintenance, the maintenance debtor will have to prove that sufficient reason (good cause) exists to be successful with a variation of maintenance order. In respect of child maintenance, the maintenance debtor, will in addition to proving sufficient reason (good cause), also have to prove that it will not be detrimental to the child’s best interests if a reduction in maintenance is granted.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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