Omarjee Incorporated

Maintenance

If any person has a legal duty to maintain you or anyone else or contribute towards such maintenance, our offices can assist in making and enforcing a maintenance order against that person. We can also assist when an existing maintenance order needs to be varied and when a maintenance claim is being made against you.

A legal duty to maintain exists in various relationships. The ones most often dealt with by our offices are :

Maintenance of a child born out of wedlock.

Both parents of a child born out of Wedlock have a legal duty to maintain that child, in proportion to their respective means. In our experience, the situation most commonly encountered is one where the parties have separated and the mother is left to solely bear the responsibility of maintaining the child. We have assisted those mothers in obtaining and enforcing maintenance orders.

Maintenance in respect of an ex – spouse and children in divorce actions.

For further assistance if you are getting divorced, view our section on MARRIAGE AND DIVORCE and make an appointment with our offices.

Both parents, again, have a legal duty to maintain their child irrespective of whether the parties are legally divorced or separated. Bear in mind that the court will consider certain factors when considering whether to grant maintenance in respect of an ex – spouse , for example :

ages of the parties

whether the duration of the marriage was for a long period

he or she stopped working in order to care for the children

he or she no longer has skills or experience to find a job to earn an income and

he or she can reasonably expect the same standard of living that he or she was used to during the marriage.

Practice has shown that age, duration of the marriage and financial capacity are the most important factors.

Variation of existing maintenance orders.

If there is an existing maintenance order, either party can approach the court for a variation of the maintenance order. A maintenance order can be increased or decreased depending on the circumstances. What is important is that there has to be changed circumstances (of a material nature ) since the previous order. For example : the child’s needs have changed or person who is contributing towards maintenance has lost his/her job.

A common question raised by our clients is how is the amount for maintenance calculated. Each case is specific and requires individual assessment, however generally the court takes into account factors such as, the reasonable needs of the person in need of maintenance and the earnings of the person who has a duty to maintain. The court ultimately decides on what is a reasonable and suitable amount. When approaching the courts for maintenance, we always request the court to take into account escalation and inflation as factors.

Although it may sound relatively simple it can be a rather complex process especially when one party frustrates the process by not disclosing or hiding their financial assets etc. Also, don’t be coerced into contributing too much towards maintenance and don’t be at the receiving end whereby you have to be bullied into accepting a contribution for maintenance that is clearly insufficient. You will be well advised to seek professional legal assistance from our offices so that your interests are well looked after.

For detailed up to date legal advice on your specific situation and to set up an appointment, contact us.

Scenarios dealt with by our offices

(The Names used in the example are Fictitious).

Jeanette ( 42 years old , 2 minor children , employed as a secretary )

Jeanette approached our offices for maintenance for her two minor children that were residing with her. She was earning R 7000 – 00 after deductions. The children’s father was an engineer and was earning R 30 000 – 00 after deductions.

We prepared a schedule of all her income and expenses. We perused the father’s relevant documentation and we approached the courts with our client’s requested amount.

After the enquiry was held, our client was pleased with the amount that we managed to claim for her. The courts had to take both parties circumstances into account to determine the adequate amount for maintaining both children.

Peter ( 48 years old , I minor child , employed as a builder )

Peter approached our offices for assistance regarding a claim for maintenance against himself. He had a minor child that was residing with his ex girlfriend. His ex girlfriend was a consultant and was earning R 15 000 – 00 after deductions. Peter was earning R 25000 – 00 after deductions and his ex girlfriend was demanding an excessive amount for maintenance. They did not have an amicable relationship and Peter had informed us that she was just escalating her figures to get back at him.

We noted the factors that we were dealing with and we prepared a schedule of all his income and expenses We perused all his ex – girlfriend’s relevant documentation to establish whether the amounts she was claiming for maintenance was excessive and not reasonable.

After the enquiry was held, our client was pleased that the amount that he had to contribute fairly reflected the parties circumstances.