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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2013-05-02
We are all aware that the moment a judge grants an order, all the role players in that particular case are required by law to comply with the terms of that order, or risk being in contempt of court.

There are however a number of occasions, most notably in divorce matters, where the parties have by agreement, informally changed the terms of the court order, giving rise to problems later. Ordinarily, the terms of the court order remain effective unless and until there is a formal application made and granted for variation of the initial court order.

A woman sued her ex husband for approximately R300 000.00 for arrear maintenance for her minor children and issued a writ of execution against her ex husband's goods, on the basis that he failed to comply with the divorce order which ordered the children to live with her and for him to pay a specified amount of maintenance to her for the children.

In his application to court to set aside the writ of execution, the man argued that the terms of the divorce order had changed by consent, as he and his ex-wife agreed that the children would stay with each parent every alternate week for a certain period.

He also said they reached a mediated agreement on the issue of maintenance where he pays the expenses of the children directly to the third parties or service providers concerned.

The woman opposed his application and asked the court to have him imprisoned for six months as he was in contempt of the court order. Judge Kollapen who made reference to other cases including our constitution, said that in the real world parents may be required to make decisions which would depart from the actual terms of a settlement agreement and said that it would be impractical to insist that all variations be reduced to writing.

He stated that parents should ensure that every decision taken by them must advance the interests and the wellbeing of the children. However the court found that the man did not pay arrear maintenance of the sum of R73 140.85 and on that basis he was in contempt of court.

He was sentenced to six months imprisonment, which was wholly suspended for 3 years, on condition he paid the arrear maintenance of R73 140,85. The Court ordered that the warrant of execution brought by the ex-wife to be set aside.

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for any legal assistance.