• The Johannesburg High Court ruled that a mother whose ex-husband had to pay child support had the right to withdraw money from his pension without prior notice.
  • Judge Tina Seawandu rejected her father’s application for the injunction to have his ex-wife warn him ten days of any attempt by her to obtain a writ of execution for alimony arrears.
  • The judge said the law does not provide for such notice if there is already an alimony order.

A mother whose ex-husband was required to pay child support was legally entitled to withdraw funds from his pension without notice.

This is the result of a ruling by Johannesburg High Court Judge Tina Sivenda, which considered the man’s urgent application. He demanded that the mother of his three children warn him at least ten days if she intends to apply for a writ of execution to get money for alimony arrears.

The judge said the law, which would have provided for it, did not provide if there was already an alimony order.

In fact, Judge Sivenda, the legislature, in enacting the provisions of the Alimony Act, “considered it necessary not to allow him the right to be notified in such circumstances.”

The couple married in 2000 and divorced in 2019.

Under the divorce agreement, the father had to pay alimony of Rs 20,000 per month for each child, as well as the cost of treatment and education.

Judge Sivendu said the father admitted he had arrears and did not pay some extra costs. This is because he lost about 30% of his income between April 2020 and January 2021 – about Rs 1 million – due to the Covid pandemic.

He asked his ex-wife to reduce alimony, but she refused.

He then filed lawsuits in both the Supreme Court and the Alimony Court to suspend certain payments and reduce overall maintenance.

Both statements were against and remained unresolved.

Then, in February of this year, he received a notice from Discovery that almost Rs 550,000 (after taxes) had been deducted from his retirement annuity.

The amount was paid to his ex-wife after filing an application without prior notice of a court decision allowing her access to his pension.

A month later, he received an SMS from her in which she threatened to apply for another order with the conclusion: “Good luck trying to stop the next one.”

Judge Sivendu said it triggered an urgent statement to the court.

“He is concerned that the premature withdrawal has significantly reduced the value of his investment and is causing him great harm.

“He is also concerned that she will also abandon another investment (with Stanlib) without notifying him or without any opportunity to appear in court.”

The judge said she agrees that the issue is urgent because it deals with important legal issues that can affect many people when making decisions against others regarding money and those who owe money.

“In addition, the issue of maintenance, legal collection or repayment of debt affects the rights and interests of children,” she said.

The judge said that although such an order could cause irreparable damage – as early withdrawal of annuities could result in early fees and tax charges – in this case the order was issued by a magistrate in the alimony court. And the provisions of the Maintenance Act did not give the right to notify when there was an order for maintenance.

She rejected her father’s statement.

© 2022 GroundUp. This article was first published here.

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