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Article by listed attorney: Fawzia Khan

A disgruntled father, Mr. E, brought an application in the Western Cape High Court demanding repayment from his ex wife Mrs. B, of approximately R41 000,00 for the maintenance which he paid from April 2007 to November 2012 towards the minor children, on the basis of unjustified enrichment. At the time of the divorce in July 2004, he and his wife signed a settlement agreement where it was agreed that Mr. E would pay R500 per month per child for the two minor children. It was also agreed that the maintenance amount would be increased yearly in accordance with the Consumer Price Index.  The settlement agreement was made an order of the court.

One of the only provisions of a divorce order which can be amended without having to make a formal application to court for a variation of the divorce order, is the issue of maintenance. If financial circumstances change, you can approach the maintenance court for either an increase or decrease of maintenance, as the case may be.

It would appear that in 2007 this is what Mrs. B did. The amount of maintenance then increased to R 1500.00 per month per child at the Magistrates Court, with Mr. E’s written consent. However the new order did not contain a clause detailing any annual escalation as the previous divorce order did. Mr. E continued to pay yearly increases totaling R40 976.00. In his application for the refund of this amount, he claimed that he only became aware in 2011 of the overpayment. He said that he was pressurized by his ex wife’s attorneys to pay the increase and that he paid the increase in error and under duress. His ex wife denied this saying that at the time the consent order was granted in the magistrates court in 2007, it was agreed that the maintenance would have an annual increase linked to inflation. She said the maintenance officer specifically mentioned that and she only realized recently that the magistrate erroneously failed to record it in the court Order.

The High Court held that the man’s claim for enrichment could not be supported and the ex wife’s version to be probable and dismissed his claim. The court also censured the man by saying that as the money was used for the maintenance of the children and not on the ex wife, his conduct “offends public policy and totally ignores the reciprocal obligations of both parents” in maintaining their minor children.

See also issues around interim maintenance and court orders.

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