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Requests for help with maintenance issues flood the Parent24 mailbox, and we sadly can't advise everyone, but with help from local experts and legal professionals we seek out answers when appropriate.
Follow the #maintenancematters series here
Here, attorney Deborah Di Siena of Di Siena Attorneys provides some assistance to this mom who's ex-husband has left the country, and is now trying to avoid his commitments.
She wrote to us to ask:
Good day,
Please can you provide some guidance. My ex decided to immigrate to the UK last year as according to him he cannot afford to stay in SA as well as still pay maintenance and school fees.
Before he left, he promised to continue paying maintenance and school fees as agreed and decreed by the judge in 2017. He messaged me today saying that he will not be able to afford the agreed amounts and offered to pay a considerably lower amount.
My children are teenagers. The agreement states that he will pay maintenance and contribute towards school fees for both of them. My eldest just turned 18 and will now receive his portion of maintenance directly into his account until he self supporting, while studying.
My ex has also told me that the reduced amount that he will be paying me is non negotiable and that if he can afford to pay my eldest son anything extra, that it will be on his own terms.
What are my rights as the primary caregiver to my children?
I do not feel that this is at all fair that my ex always calls the shots and there are never any consequences for him for his poor decisions. My children and I always seem to get the brunt of his choices.
I would really appreciate some guidance in terms of the steps I should take.
Many thanks and kind regards,
A Single Mom
Attorney Deborah Di Siena of Di Siena Attorneys responds:
Dear Reader,
The law places a duty on both parents to maintain their children, to the extent reasonably required for their proper living and upbringing which includes the provision of food, clothing, accommodation, medical care and education.
Therefore, your husband also has a duty to support and maintain your children until they become self-supporting. The court order which you have is enforceable and he will be held liable for arrear maintenance should he default in his monthly obligations.
The fact that he has moved to the UK, does not change and/or terminate the existing maintenance order granted in South Africa.
The Reciprocal Enforcement of Maintenance Orders Act (REMO) allows a parent living in South Africa to claim maintenance from a parent living in a foreign country and vice versa.
South Africa has reciprocal enforcement agreements with the United Kingdom. This means that the maintenance order you have is enforceable in the UK.
In order to enforce the maintenance order on your ex-husband in the UK, the following documentation must be submitted to the Department of Justice and Constitutional Development:
a) Four certified copies of the provisional/final court order.
b) Four certified copies of the affidavit by the complainant or an officer of the court as to the amount of arrears due under the order.
c) Four certified copies of the affidavit or evidence of the complainant.
d) Birth certificate(s) of the children.
e) Marriage certificate (if applicable).
f) A photograph and description of the defendant.
g) The exhibits referred to in the complainant’s affidavit or evidence.
h) Physical residential and or working address of the defendant in a proclaimed country.
The Department of Justice and Constitutional Development will then proceed in terms of section 8 of the REMO, whereby an enquiry should be held under section 10 of the Maintenance Act, 1998 (Act 99 of 1998), in the absence of the person residing in a proclaimed country or territory who may be legally liable to maintain any person in the Republic.
It takes approximately 12 months for an order to be registered in proclaimed countries.
Accordingly, your existing maintenance order can be enforced in the UK, due to the UK and South Africa having an enforcement agreement. It’s advisable to speak to an attorney, to understand the legalities and procedure in terms of the REMO Act.
All the best,
Deborah Di Siena
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