Father can’t get money from sale of his house until he pays child maintenance, judge rules

The Gauteng High Court in Johannesburg has ruled that a father cannot access the proceeds from the sale of his house until he has paid the arrears on his child maintenance payments. Archive photo: Ashraf Hendricks

• A Johannesburg mother has won an interdict preventing her former husband from access to the proceeds of the sale of his house until he has paid up his child maintenance arrears.
• High Court Judge Leicester Adams ordered that the money must be held in trust by attorneys acting for the man’s former wife pending the calculation of what he owes.
• He also ordered the man to pay the costs of the application.

A Johannesburg father who owes about R200,000 in maintenance for his children, will not be able to get his hands on the proceeds of the sale of his house until he pays up.

This is the upshot of a ruling by Johannesburg High Court Judge Leicester Adams who has ordered that the money must be held in trust by attorneys acting for the man’s former wife pending the calculation of what he owes.

The urgent application for an interdict preventing the man from getting access to the money was launched by his former wife who said he had regularly failed to comply with a maintenance order granted at the time of their divorce in December 2008.

Read the full judgment here.

In his judgment, Judge Adams said the former wife wanted an order preserving the proceeds from the imminent sale of the home he owns.

The man did not dispute that he was in arrears on the maintenance payments and conceded that he could owe as much as R200,000.

“He does aver, however, that he fell into arrears through no fault on his part … that he was retrenched twice, leaving him in dire financial straits. He claimed he paid whatever he could towards the maintenance of his children from his meagre resources and even from the proceeds of personal loans he obtained from members of his family,” the Judge said.

In 2021, when the father was supposed to be paying R18,000 a month, he offered to pay only R10,000, leaving his ex-wife to foot the balance.

In her application, which was heard this month, she said he was still not paying the full amount. She believed he was liquidating his assets and would most likely claim the cash from the sales had been used to pay off other debts.

Once this happened, she said, there would be little or no chance of her ever recouping the maintenance arrears.

Judge Adams said her fears were well-founded

“The point is that he is singularly reluctant to make a commitment that he will make a payment from the proceeds (of the sale) to the arrear maintenance.

“The property is the only asset in his estate.”

The judge said she was entitled to interdict because she had shown that her former husband was likely to “spirit away the proceeds”. He had made it clear that he did not view his maintenance obligations as a priority, in spite of a court order, but believed he should give preference to loans from his father.

Judge Adams said the order was not for the payment of the arrears because the exact amount still had to be determined. The former wife could obtain a court order for the payment of that sum, he said.

He ordered the man to pay the costs of the urgent application.

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