Can the proceeds of a sale of property be used to settle arrear maintenance?

19 May 2022 906
Maintenance is payable in terms of a maintenance order and requires strict compliance. A number of options are available in the case of default to recover arrear maintenance, with the most effective remedy depending on the facts of each case. But will this include laying claim to the proceeds of a sale of property of the defaulter, or is this going too far?

A recent judgment of the Johannesburg High Court answers this question. In this case the applicant brought an urgent application against the father of their two minor children for arrear maintenance dating back to 2008. In the application the applicant also asked for an interim order preserving the proceeds of the sale of the father’s property, pending the determination of the exact amount due to her in respect of the arrear maintenance.

As the father did not dispute the fact that he was in arrears with maintenance payments, the legal question the court had to consider was whether the proceeds of a sale of property could be used to settle arrear maintenance. In resolving this dispute, the court considered the following:

1.    Firstly, the applicant argued that the registration of the transfer of the father’s property was imminent and he would use the money from the sale to pay off other debts and then claim that no money was left to pay the arrear maintenance.
2.    Secondly, the property was the only asset in the estate of the father that could assist to settle his indebtedness to the applicant.
3.    Thirdly, the applicant had a right to such arrear maintenance.

The court held that the applicant had established a clear right to the proceeds of the sale of the first respondent’s property so as to receive payment of the arrear maintenance. The court reiterated that without an order interdicting the payout of the proceeds of the sale of the property the applicant would be left with little tangible options to protect her rights and interests. The balance of convenience was therefore favorable to the applicant and the proceeds were to be used to settle the arrear maintenance once the exact amount had been determined.

This confirms the importance of paying maintenance and how our courts take a strong view of keeping maintenance defaulters to their obligations.

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