A divorced father who botched to honour his child maintenance obligations and disregarded court rulings is now set to have his house sold in execution of his debt towards the child. The Constitutional Court on Thursday dismissed an application for leave to appeal by the man‚ known as SS‚ against a 2015 high court judgment which directed that his house be sold in execution of a R306 000 maintenance debt.
Haywood v Haywood and another -  JOL 31970 (WCC)
The applicant (father) and first respondent (mother) were engaged in divorce litigation. They entered into a settlement agreement, which was presented to Court for an order in terms thereof to be taken by agreement. In terms of the agreement the father undertook to maintain the parties’ minor son by the payment of cash in the amount of R7 000 per month to the mother, by covering his reasonable medical expenses and by paying his school fees. The father continued to pay the maintenance in respect of his son up to the beginning of 2014. He then discovered that the mother decided to enrol the boy into a college to able him to improve his Matric grades. The father was not happy at not having been consulted, and obtained advice from his attorney.
He was advised that since the boy was then 18, that he was no longer required to pay maintenance directly to the mother.
Flowing from the father’s stance, the mother obtained a writ of execution for the attachment of movables belonging to the father, for an amount representing one month’s maintenance, and the college fees.
In an urgent application, the father sought a declaration that the order made pursuant to the settlement agreement had lapsed due to their son having attained majority.
The court found that ordinarily, the position is that upon the attainment of majority of the child, the parent in whose care the child is, no longer has the locus standi to claim payment of maintenance on behalf of the child. The principles which have been applied in respect of agreements to pay maintenance incorporated into orders of divorce can usefully be applied to agreements in relation to Rule 43 applications as well. The Court had to determine the parties’ intention when they concluded the agreement. The golden rule is to have regard to the language of the written instrument in question, and to give it its grammatical and ordinary meaning. The Court was satisfied that the parties contemplated continued payments by the father directly to the mother after their son’s majority.
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Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.