Pretoria - There is no getting out of a pre-existing maintenance court order, a father who fell into arrears with his maintenance payment has discovered.
In fact, the man learnt the hard way when he found out that his former wife had obtained an order to recover the arrears from his pension fund.
The businessman from Blair Atholl turned to the South Gauteng High Court, for an order directing his ex-wife to notify him in the event that she intended to apply for another warrant of execution against his pension fund.
He said he should be told about her intentions at least 10 days prior to her heading to court again, so that he would be able to defend such an application.
The couple, who are the parents of three children, divorced in 2019. In terms of the divorce settlement, the man had to pay maintenance of R60 000 a month – R20 000 for each child – plus medical and educational expenses.
The man admitted that he fell into arrears and had not met his maintenance payment obligations. He had not met the payments for medical and educational expenses either.
He said he had lost about 30% of his income between April 2020 and January 2021, amounting to about R1 million, due to the Covid-19 pandemic.
He requested his former wife to agree to a reduction of the maintenance payable, but she refused.
He stated that from April 2020 to June 2020, he paid R35 000 per month as maintenance. From July 2020 he paid R40 000 per month as maintenance and had maintained doing so since.
He has meanwhile in separate proceedings, which are still ongoing, turned to the court to reduce his maintenance obligations.
His urgent application was prompted by a notice he received from Discovery that a deduction had been made from his retirement annuity.
He discovered that his former wife had obtained a court order, without his knowledge, allowing R776 661 to be deducted from his pension fund to cover his arrears in maintenance. A portion of this money also went towards paying taxes on this amount.
There was no notice to him that funds were to be withdrawn from his retirement annuity.
He became even more worried when his ex-wife sent him a text message, in which she said: “Good luck trying to stop the next one,” accompanied by a winking emoji.
He said it was clear that his ex-wife intended to make another withdrawal.
His concern was that the premature withdrawal has substantially decreased the value of his investment and he said this was prejudicial to him.
The husband is also afraid that she may dip into his other investments, armed with a court order he knew nothing about.
Judge Thina Siwendu pointed out that the writ was issued by the Magistrate’s Maintenance Court and under the provisions of the Maintenance Act.
She said where there was a pre-existing maintenance court order, there was no mechanism to resolve a dispute about the amount owing before the issue of a writ.
In turning down the husband’s application, the judge said the legislature saw fit not to afford him a right to a notice before the issue of a writ of execution.