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FAILURE TO PAY MAINTENANCE

12/25/2020

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A K v J K (19890/2018) [2020] ZAWCHC 143 (3 November 2020) 
Court: Western Cape Division, Cape Town
Case No: 19890/2018
Dates heard: 13 June, 2 August, 12 December 2019, 12 March & 24 July 2020
Delivered: 3 November 2020
Judge: Gamble, J


HEAD NOTE

Doctor who told his ex-wife he was no longer willing to fund you lying on your couch every day faces two years behind bars if he doesn’t pay her R1.5m of spousal maintenance within a month.

​
Contempt of court – where the wife was awarded lifelong maintenance, the husband unilaterally opted to decrease paying same – The court found that he had acted willfully and with mala fides

SUMMARY

In this case, the parties were divorced by way of a deed of settlement on 19 September 2013. The order incorporated spousal maintenance of R52 000 per month up until the wife (applicant) dies, remarries, or cohabits with another man for more than six months. The settlement agreement incorporated an escalation clause, and by the time the matter went to court, the monthly maintenance was R69 384,48. The husband (respondent) unilaterally made the decision to start decreasing the amount of maintenance. By May 2020, he was paying R10 000 per month and was owing R1 539 158,96. As a result, the wife lodged an application for contempt of court. The court found that the wife was still alive, had not remarried, nor was she cohabiting with anyone else.

The respondent was a specialist ophthalmologist. He managed a practice called Dr. J.A.K and operated various other private companies. On 12 March 2020, counsel for the respondent provided an expert report prepared in 2011 during the divorce. Experts from both sides concurred that the respondent's assets, and his ability to pay maintenance, were to be determined in line with the entities that he controlled.

It was difficult to ascertain the respondent's financial position due to the fact that he did not furnish all the necessary documents, and the experts from both sides did not have a meeting. The virtual hearing of 24 July 2020. Counsel for the respondent contended that aside from the fact that the respondent's gross annual income was R13 to R14 million, he had fallen into hard times, and the applicant had to carry some of the consequences. But counsel for the appellant quickly reminded the court that the respondent had still not given full disclosure about his finances.

The court noted that it was common cause that there was a court order, which the respondent knew about but still failed to comply. Consequently, the only matter was whether the breach was willful and mala fide. (See Fakie No v CCll Systems (Pty) Ltd 2006 (4) SA 326 (SCA) and Bannatyne v Bannatyne 2003 (2) SA 363 (CC) regarding the requirements for contempt of court).

In Maujean t/a Audio Video Agencies v Standard bank Ltd 1994 (3) SA 801 (C) at 803H – l, the court described willfulness in the context of default judgment as follows "…deliberateness in the sense of knowledge of the  action and the consequences.." The court found that such an approach was warranted in considering the willfulness element as it accords with the court's reasoning in Fakie.

It was argued that the respondent only realised in February 2018 that his finances were weakening so
much that he could not afford to pay maintenance. The court contradicted the argument because the respondent had always threatened to stop paying maintenance way before that point. Besides, there was uncontested expert evidence which revealed that he was still able to afford the payments. The court also pointed out that even though the respondent's accountant expressed some reservations about the deed of settlement, the respondent did sign it and continued to pay the money every month for four years without defaulting. The court found that the respondent's true motivation for stopping to pay maintenance was documented in a WhatsApp text to his ex-wife. He told her that he no longer felt like working to support her and that he was contemplating retiring in 2021. He also informed her that she must move on with her life as he did not intend to maintain her forever.

The court also held that it was obvious in the respondent's answering affidavit that he knew that he could not unilaterally decide to disobey a court order. Yet, he proceeded to do so. It was further held that not only did he behave willfully, but he was also shown to be mala fide. For example, he undertook to provide the court with full details of his financial position and never did.

In summary, it was held that he had failed to adduce evidence, which demonstrates a reasonable doubt that he acted without willfulness and mala fides. Consequently, it was held that the respondent should pay the outstanding R1 539 158,96 to the applicant within one month and to continue paying the monthly maintenance. He was sentenced to 60 days imprisonment, which was suspended for two years on the condition that he complies with the court order. 
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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Vaccinating Children Covid-19
    • Suspending Parental Rights
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Amended Bill
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities