R2m maintenance bill for ex

DEFAULTING on maintenance had a costly effect on a father who has not paid any maintenance in the more than 28 years since a divorce for the former couple’s only child.

He now faces a bill of more than R2 million. The Gauteng High Court, Johannesburg, once again proved that the courts will not tolerate parents who simply ignore a maintenance order. The court placed the man under final sequestration.

To make matters worse, the man entered into a settlement agreement during the divorce in 1995, when their only child was 34 months old. The settlement was, at the time, made an order of the court and now came to haunt the father.

The parties were married to each other out of community of property. When they divorced in September 1995, the divorce settlement agreement made provision for payment of maintenance and other related monetary payments to be made by the man to his former wife.

The agreement was made an order of the court in 1995, thus becoming a judgment from which the man could not shy away.

A warrant of execution of the judgment was earlier issued by the court, in which the woman wanted her ex-husband’s assets sold to obtain the R2 154 461.81 he owed her.

When the sheriff served the warrant of execution on him in April 2021, no judgment assets could be pointed out by the husband for payment of the amount.

The man simply told the sheriff that he had nothing and no money. Thus nothing could be taken from him. But this was not the end of the man’s problems as his ex-wife then proceeded with a sequestration application against him on the grounds that he was insolvent and thus could not pay his debts.

The man fought tooth and nail in court not to be sequestrated. He argued in court that he was not insolvent because the value of his assets exceeded his liabilities.

He did so by stating that the number of assets that he owned whose value he claimed far exceeded his total liabilities. As a defence to the sequestration proceedings, the man gave what he called a bond of security by way of a notice to the former wife. The notice attempted to state what assets and shares would be disposed of to take care of the claim.

But Judge Marcus Senyatsi said, in his view, this so-called bond of security, listing assets, did not accord with the security bond in the normal sense because it was not a security bond sound in money.

“Security bonds are usually issued by the financial institutions as a guarantee to pay the sum mentioned in the bond in satisfaction of a claim. Accordingly, I hold the view that the applicant (wife) was entitled to reject the notice of security bond as an adequate security to the amount stated in the writ of execution,” he said.

Judge Senyatsi added that the man failed to take the court into his confidence by, for instance, challenging the application on the basis that he paid the outstanding amount. The only inference that was drawn was that the debt remained unpaid, and he had committed an act of insolvency by stating that he had no disposable assets to meet the claim, the judge said.

The ex-husband insisted that he wanted to inspect the documents to determine how his wife had arrived at the conclusion that he owed her more than R2m. He was invited to do this, but this invitation was not taken up as he insisted that he wanted to inspect the documents at the ex-wife’s home.

“This, in my view, is an adequate effort to challenge the basis of the amount claimed in the warrant. What is not disputed is the fact that maintenance and other monetary claims as averred by the applicant in the warrant were never paid in respect of the child of both parties in terms of the divorce judgment.”

He pointed out that the ex-husband had more than adequate time to either point out his assets to the sheriff to enable the latter to execute the judgment of the court but failed to do so. He also did not provide sufficient a explanation for his failure to meet the payment required in the warrant.

“The judgment has remained unsatisfied for an entire period of (nearly) 29 years. I am also satisfied that the applicant has established that it will be to the advantage of the creditors that the estate of the respondent be sequestrated,” the judge said.