Can an ex-wife claim maintenance arrears from her ex-husband’s retirement fund?
A case came before the Gauteng High Court recently in which a woman had deducted funds from her ex-husband’s retirement funds for child maintenance arrears. The applicant was the ex-husband, who claimed that it was unfair for an application for withdrawal of funds to be made without notice to him and without any opportunity to make representations to the court. The application was dismissed. Let’s look at this in more detail. On the face of it, the applicant’s objection to seeing his retirement savings diminished would appear reasonable. But what about his obligation to pay maintenance for his children?
The maintenance agreement
After the divorce, the settlement agreement required the applicant to pay maintenance at the rate of R20,000 per month per child (there are three children), plus medical and educational expenses. He fell into arrears and claims his income was a casualty of the economic fall-out from the COVID-19 pandemic.
Deduction without notice
He then received a notification from Discovery that a substantial deduction had been made from his retirement annuity. The amount was withdrawn following an ex parte application (this means “done with respect to or in the interests of one side only”) by the respondent, based on a schedule of his maintenance arrears. He received no prior notice that funds would be withdrawn. A month later he received a WhatsApp message from his ex-wife informing him that she intended to effect another withdrawal. Understandably, he was alarmed and approached the court on an urgent basis. The early withdrawal from his retirement annuity had substantially decreased the value of his investment and is highly prejudicial to him. He named Discovery as second respondent and Stanlib Investments as third respondent, because he has a further investment there which could be subject to a similar ex parte application by his ex-wife.
What does the law say?
It may seem unreasonable that the respondent…the applicant’s ex-wife…“raided” his retirement savings. Certainly it is not difficult to understand his dissatisfaction with the arrangement and his unease that it may happen again. However, the maintenance agreement was decreed by the court as part of his divorce settlement. The writ was issued by the Magistrate’s Maintenance Court, under the provisions of the Maintenance Act 99 of 1998. In a case like this, where there is a pre-existing maintenance court order, there is no mechanism to resolve a dispute about the amount owing before the issue of a writ. There is also no requirement for notice to be given before the issue of such a writ. If the applicant continues to default on maintenance payments, the method of execution used by his ex-wife – the application for a warrant of execution on an ex parte basis, used to obtain payment directly out of her ex-husband’s retirement annuity fund – is perfectly legitimate.
According to law, there is no need to for the ex-wife to give her ex-husband notice before the issue of a writ of execution in this regard. Application was dismissed. The moral of the story is: if the court has ordered maintenance to be paid according to a particular schedule, it is important to keep to the schedule. If this is not possible, even for valid reasons (in this case the impact of the COVID-19 pandemic), then retirement savings are fair game. It may be harsh, but it is fair.
Always seek the advice of an excellent divorce lawyer for any maintenance arrears
SD Law is a firm of experienced divorce attorneys based in Cape Town, with offices in Johannesburg and Durban. What does a family lawyer do? Family lawyers deal with much more than just divorce and custody. If you have concerns over your maintenance agreement or problems with maintenance arrears, call family lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.
Further reading:
- Maintenance arrears of over R3m ordered to be paid 29 years after divorce
- Mom entitled to take ex-husband’s pension money for maintenance, says judge
- Man who failed to pay maintenance to child and former wife must report to jail
Divorce Attorney Cape Town
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