Mom entitled to take ex-husband’s pension money for maintenance, says judge

The Johannesburg High Court has ruled against a father who wanted his ex-wife to have to give him notice of any attempt to get an order for money for maintenance arrears. Archive photo: Ashraf Hendricks

• The Johannesburg High Court has ruled that a mother whose ex-husband owed maintenance payments for their children was entitled to take money from his pension without notice.
• Judge Tina Siwendu dismissed an application by the father for an order that his ex-wife give him ten days notice of any attempt by her to get a writ of execution for maintenance arrears.
• The judge said the law did not provide for such notice to be given where there was already a maintenance order.

A mother whose ex-husband owed her maintenance payments for their children was legally entitled to withdraw funds from his pension without giving him notice.

This is the upshot of a ruling by Johannesburg High Court Judge Tina Siwendu who was hearing an urgent application by the man. He sought an order that the mother of his three children must furnish him with at least ten days notice if she intended to apply for a writ of execution to get money for maintenance arrears.

The judge said there was no law which provided for this where there was already a maintenance court order.

In fact, Judge Siwendu said, the legislature, in enacting the provisions of the Maintenance Act, “had seen fit not to allow him the right of notice in such circumstances”.

The couple married in 2000 and divorced in 2019.

According to the divorce settlement, the father was to pay maintenance of R20,000 a month for each child, plus medical and education expenses.

Judge Siwendu said the father had admitted that he was in arrears and had not paid some of the additional expenses. This was because he had lost about 30% of his income between April 2020 and January 2021 - about R1 million - because of the Covid pandemic.

He asked his ex-wife for a reduction in maintenance, but she refused.

He then launched proceedings in both the high court and the maintenance court to suspend certain payments and reduce overall maintenance.

Both applications were opposed and remained unresolved.

Then, in February this year, he received notification from Discovery that almost R550,000 (after tax), had been deducted from his retirement annuity.

The amount was paid to his ex-wife following an application, without notice to him, for a court order allowing her to access his pension.

A month later, he received a text message from her in which she threatened to apply for another order concluding “Good luck trying to stop the next one”.

Judge Siwendu said this had prompted the urgent application to the court.

“His concern is that the premature withdrawal has substantially decreased the value of his investment and is highly prejudicial to him.

“He is also concerned that she will also withdraw from another investment (with Stanlib) without notice to him or without any opportunity granted to him to make representations to the court.”

The judge said she agreed that the matter was urgent because it involved important questions of law which could affect many people with judgments against others with respect to money and those who owed money.

“In addition, the question of maintenance, the legal method of collecting or recouping arrears, implicates the rights and interests of children,” she said.

The judge said while there might well be irreparable harm in the execution of such an order — in that early withdrawals from annuities could trigger early exit fees and tax charges — in this case the order had been issued by the magistrate in the maintenance court. And the provisions of the Maintenance Act did not confer a right of notice where there was a maintenance order.

She dismissed the father’s application.

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