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What Criteria Is Used To Change A Maintenace Order

What Criteria Is Used To Change A Maintenace Order

Author: Fawzia Khan
Date: 2023-02-01
A man who was ordered by the court to pay maintenance to his wife in 2019, brought an application to the high court towards the latter part of 2022 to vary the 2019 high court order, saying that his wife worked as an escort where she made anywhere between R88 000 and R153 000 per month and that she was thus no longer in need of maintenance.

In support of his claim the man ?VW? hired a private investigator on his wife?s lifestyle. He used the private investigator?s report together with a set of internet advertisements for the woman?s services to demonstrate to the court that she was not in need of maintenance from him.

Whilst the woman did not deny that she indeed earned an income as an escort, she argued that the amount of money she made as an escort was insufficient to meet her lifestyle. She said that her income from being an escort exceeded only a few thousand rand a month and denied that was any basis for the maintenance order to be varied.

She thus insisted that the man continue to pay her the maintenance in terms of the 2019 court order. The court suspended the 2019 court order and asked the woman to produce her financial disclosure documents to support her claim that she earned only a few thousand rand, which she did.

Once all the affidavits were filed and exchanged on both sides, the matter was heard in December 2022. In arriving at a decision, the court said it was not convinced that woman made the amount of money which was alleged by her husband. The court said that the man?s claim was speculative and drawn from inferences which were drawn from the private investigator?s report.

As the private investigator did not give evidence under oath, the court felt that that was ?unsteady ground on which to make a finding?. Judge Wilson said he was ?reluctant to make an order that would result in undue financial hardship for Mrs. VW, especially as that hardship could only harm the prospect of her being able to strengthen her relationship with their minor child?. The court said the financial disclosures did not provide an indication that the woman earned a regular or substantial income from being an escort, or from any source other than the man?s maintenance payments.

In rebutting the woman?s denial, the man said that she was being dishonest about her income and that she was hiding additional bank accounts and sources of income from the court. However the man was unable to produce direct evidence to this effect. Because of this, the court said his claims remained speculative if it was unsupported by any direct evidence which were placed under oath.

In order to succeed in being finally relieved of his maintenance obligations, the court said the man had to allege and prove, on a balance of probabilities, a material change in the woman?s circumstances in the form of a substantially increased income, which he failed to do. It held that there was insufficient evidentiary foundation with which to support a claim to vary the maintenance order.

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