Can your ex be sequestrated for failure to pay maintenance?
Magdaleen de Klerk, managing director at DDKK Attorneys set the record straight.
POLOKWANE – Every so often you will hear a single parent complain that the child’s other parent does not pay maintenance despite a court order.
Most often, fathers stop payment saying they can’t afford to pay maintenance.
Magdaleen de Klerk, managing director at DDKK Attorneys set the record straight.
“Where an ex-spouse is in arrears with maintenance, the first step would usually be to enforce the maintenance agreement or order via the court.
“Should the ex-spouse not have an income, the ability to pay or physical assets that can be executed against, our courts have afforded the affected spouse another avenue to recover arrear maintenance.”
She continues to say that in a recent judgment, the North Gauteng High Court in Pretoria ordered that an ex-spouse be placed under provisional sequestration.
If the ex-spouse did not have physical property that could be executed against, but had shares in a family trust and business trust, it could, among other assets, be used to settle the arrear maintenance.
For provisional sequestration, the court has to consider Section 10 of the Insolvency Act, which requires that for such an order to be granted:
• The petitioning creditor (owed spouse) must establish a claim against the debtor entitling him or her to apply for the sequestration of the debtor’s estate;
• The debtor must have committed an act of insolvency or the debtor must be insolvent;
• There must be reason to believe that it will be to the advantage of creditors if the debtor’s estate is sequestrated.
Based on these requirements being met, the court granted the order for provisional sequestration of the ex-spouse.
The ex-spouse would at a later stage be able to approach the court to provide reasons why a final order of sequestration should not be made.
If they fail, they will be sequestrated and their assets fall to the trustee of their estate to be sold to pay their debts, which will include the arrear maintenance.
“Sequestration is a possibility to recover arrear maintenance, although not necessarily the first or most speedy course of action.
“Our advice is to consult with your attorney as to other options available to recover maintenance arrears and only as a last resort, consider bringing an application for sequestration against your ex-spouse,” De Klerk concluded.
