March 9, 2017

Applying for a variation of a maintenance order: Reduction

Sabina Chivasa

The case of Strydom vs Strydom provides us with some guidance with regards to applying for a variation of a maintenance order to reduce the amount payable.

In the above-mentioned case, the Honourable Judge stated that the crux of the matter was whether the appellant was financially able to pay the maintenance demanded of him in terms of the order of the court and not whether the needs of the minor children justified the payment of such maintenance.

In order to substantiate a claim for reduction in the amount payable for maintenance, the Applicant has to substantiate a change in the conditions that existed when the original order was made.

The Honourable Judge cites several cases in coming to his findings. The cases cited are as follows:

  1. Roos vs Roos

In this case, the variation concerned a maintenance order in respect of a divorced spouse and whether “good cause” had been shown for such variation within the meaning of that term. In this case, the court held that a variation would ordered because there was a change in the conditions that existed when the order was made. The court held that it would be unfair that the order should stand in its original form.

  1. Havenga vs Havenga

This case concerned the maintenance order with respect to a divorced spouse. It was stated that as a general proposition, in the absence of a real change in circumstances, there would be no sufficient reason for a change. However, the court did add that there could be circumstances where reasonable grounds existed for variation of a maintenance order, even where there was no real change in circumstances.

  1. Hossack vs Hossack

This case differs from the rationale stated in Havenga vs Havenga. The learned Judge in this case drew a distinction between the “good cause” to be shown when an applicant seeks to vary maintenance payable to a divorced spouse, and when variation is sought in respect of the maintenance payable to minor children. In the latter, the following was submitted:

“An applicant need usually only show an ability on the part of the respondent to pay more and a need that more should be paid.”

The learned judge stressed that in these cases, the most important factor is the needs and welfare of the children. The payment of maintenance for minor children, is a priority, in the demands upon the resources of the individual liable for payment of such maintenance.

The court in Strydom vs Strydom stressed that with regards to such applications, it is incumbent upon the applicant not merely to show a reduction in his salary, but also to show an inability on his part to pay such maintenance. It is therefore not an absolute necessity to show a change in circumstances before a reduction in maintenance payable may be considered. A change in such circumstances, whether for the better or worse, remains, however, a factor to be considered.

The court also cited the case of Girdwood vs Girdwood, in which it was stated that as upper guardian of all dependent and minor children, the courts have an inalienable right and authority to establish what is in the best interests of children and to make corresponding orders to ensure that such interests are effectively served and safeguarded.

The court in the case of Strydom vs Strydom dismissed the application for a variation order on the maintenance payable as the appellant did not adequately substantiate his claim for a reduction in maintenance.

An Applicant will only be successful in the application for a reduction of maintenance payable for children if such claim can be substantiated by proving the following:

  1. A reduction in income, and
  2. The inability to pay the current maintenance amount.

In cases where the client cannot objectively prove this, this claim for a reduction in the maintenance payable to his/her children will be most definitely rejected.

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