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WCLawyer, Attorney
Category: South Africa Law
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Experience:  L.LB (UOVS)
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Good Day I was divorced almost 2 years ago my ex husband has

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Good Day I was divorced almost 2 years ago my ex husband has now gone to court and maintenance has been reduced. I pay 75% of costs and he pays 25% can I go after his parents for the remaining 25% because he is pleading he doesn't have the money? They both work and they helped him out till the court said he doesn't have to pay. please help
Submitted: 1 year ago.
Category: South Africa Law
Expert:  WCLawyer replied 1 year ago.
Good day and thank you for your question. My name is XXXXX XXXXX I will try and assist you today.

Remember that the default position in the South African common law, entrenched in statute through the Maintenance Act is that each parent is to pay maintenance towards their children in proportion to their means.

What this basically entails is that, say you earn R 7 500 per month and he earns R 2 500 per month and the maintenance needs of the child is R 1 000 per month, then proportional to the total combined income, you must by 75% and he 25% (R 750 and R 250 respectively).

If he cannot afford to pay the R 250, then you can summons his parents for the shortfall.

It is very important that you understand the concept of the shortfall. Keeping with the example above, where the child's total maintenance needs is R 1 000 and R 1 000 is paid between the two of you, then you cannot claim anything from his parents, because that is the total maintenance needs of the child cared for, done and dusted. Meaning, you cannot add his parents to the proceedings in order to reduce your proportional contribution.

I sincerely XXXXX XXXXX I am making sense here, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively. I do not get anything unless you rate the service
Customer: replied 1 year ago.

Hi John


 


he has his own company that isn't doing very well we were in maintenance court for 9 months and he said he could not pay he gets net R17 000 and I get Net R18 000 so it was a 50/50 split BUT when we got divorced I took a one payment a month with only CPI increase which was R6000 now its down to R5500 and we have to review every September to see what he can afford so CPI isn't in the cards anymore and his low amount and the kids costs are R21 000 my parents are helping me afford them and I am remarried.


 


I just want to know can I go after his parents for the 50/50 split to be equal?


 


 

Expert:  WCLawyer replied 1 year ago.
If the maintenance needs of the child is R 21 000 and between the two of you and the split is supposed to be 50/50 (which sounds about right, given your respective incomes) and he pays R 5 500, then that leaves you with a shortfall (on his end) of R 5 000 a month. This is calculated as follows :

R 21 000 total obligation between both parents. Half of that is his obligation, being R 10 5000. His contribution is R 5 500, to be subtracted from the R 10 500, which leaves R 5 000 that he is supposed to pay that he says he cannot.

So, under those circumstances, you should be able to claim the R 5 000 shortfall from his parents.

You should however note that there is an affordability component in that action as well. So, although you don't have to convince the court that your children need R 5 000 more from his side of the family (this seems to have been established in the maintenance proceedings with him), they need to convince the court that they cannot afford it.

The way you go about this is exactly the same process as you followed in the maintenance court now. You would have to approach the Maintenance Court, who will summons the grandparents to come to Maintenance Court and explain why he should not order them to pay the shortfall caused by their son.

So, in conclusion: Yes, you can sue his parents for the maintenance shortfall.
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15063
Experience: L.LB (UOVS)
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