live Question 1: Gauteng

What is the procedure to dispute child maintenance because I am not happy with the maintenance officer’s ruling I want to take the matter back to court for formal enquiry in front of the magistrate?

I have 3 minor kids aged 118 & 6. I have a bond paying 6000 – the officer said I can’t claim for accommodation which I was not happy with because we are not staying for free. Grocery of R3200 electricity R900 municipal water rates and taxes R1200. Domestic Worker 2500 school fees R3030 school transport R1800 medical aid 3060 uniform clothes twice a year. Stationery. House maintenance household expenditure. I want to dispute the order because the officer was baised. The officer told me that I can’t claim for accommodation because its my bond so it’s my problem. The officer said the domestic Worker work at my house. Worst part none of our documents were scrutinised. I felt so frustrated angry and helpless. The officer decided that the father will pay for school fees school transport stationery school uniform and clothes twice a year. I am still doing more and I am earning way less that the father. Atleast is the matter can be taken back for formal enquiry so that they can look at our income expenses and then child’s need. The office took out lots of things from my claim. Accommodation electricity water and rates grocery domestic Worker medical aid and all other expenses household and house maintenance are on me. I want court to re look at this. Please advise me frustrated mother. Question 2: Gauteng My maintenance file spans from December 2010 when I opened a case against my ex-husband at the Randburg Magistrates Court. It is a long involved saga. We tried subeponas a couple of garnishees section 31 section 10 an attachment orderand still he just avoids pays what he feels like if he feels like moves jobs works as a consultant tries to hide his businesses and who he is working with and for. The case started in Randburg then transfered to Pietermaritzburg when we moved there and now is back at the Randburg Courts. I have finally managed to trace his details but feel so despondent because it feels like we are going to just continue in the fight and it will be fruitless. I have 3 children who have suffered through this and I am needing to ask if there is any hope. He is a smooth talker and manages to smooth talk his way through court proceedings even when he doesnt bring his financials. I suspect too that his life partner is also behind hiding financials as she is a financial accountant and has been on scene since the beginning. Not sure where to turn to or how to begin again. Question 3: Gauteng Am i entitled to claim back maintenance? Question 4: KwaZulu-Natal I do not require legal advice. I want to attend the session as I intend to proceed with pupillage in the near future and this is one of the facets that I have a keen interest in. I would like the opportunity to attend this session to gain more knowledge on the topic and to understand how to handle problems of this nature. Question 5: Gauteng I have twin girls turning 15 this Month. their Father had been paying R2500 maintenance for the last 3 years and 1 school fees and helps with School clothes for 1 child – he is supposed to buy them clothing for when he has them for holidays which hasn’t been done over 2 years – I barely can afford to buy them clothing and this holiday I am sending them to him with no much clothing so he is forced to buy for them while they there. He was supposed to get the girls a medical aid which never happened. They have it now because my Job gave that to me as a perk (which I am very grateful for) . My Salary without his maintenance after debt and deductions is only +/- R5000 which I have to buy food/electricity/fuel for my car/pay School Fees. I have asked him to increase it and I am not asking for a ridiculous amount of money but he hasn’t budged. The girls have needs and I feel he needs to play a bigger financial roll then he is. He is married with 2 other children. Beginning of this year he started working overseas. He comes back for 3 Months and goes back. I want to know if he isn’t in the country could his wife be summoned to court on behalf of him? Thank you. Question 6: Gauteng I have a maintenance case we attend our first date than he said I need DNA to make sure that the kids yours DNA date was on 26 of October 2021 I go to court when I drive I found this guy send doctor letter he said I tested positive for COVID 19 but he come to sign our ob book Maintenance court is gonna help me

Posted on 11 February 2025 by Telelaw

Questions posed when registering on www.ourlawyer.co.za/live

Question 1:

Gauteng

What is the procedure to dispute child maintenance because I am not happy with the maintenance officer’s ruling I want to take the matter back to court for formal enquiry in front of the magistrate?

Question 2:

Gauteng

My maintenance file spans from December 2010 when I opened a case against my ex-husband at the Randburg Magistrates Court. It is a long involved saga. We tried subeponas a couple of garnishees section 31 section 10 an attachment orderand still he just avoids pays what he feels like if he feels like moves jobs works as a consultant tries to hide his businesses and who he is working with and for. The case started in Randburg then transfered to Pietermaritzburg when we moved there and now is back at the Randburg Courts. I have finally managed to trace his details but feel so despondent because it feels like we are going to just continue in the fight and it will be fruitless. I have 3 children who have suffered through this and I am needing to ask if there is any hope. He is a smooth talker and manages to smooth talk his way through court proceedings even when he doesnt bring his financials. I suspect too that his life partner is also behind hiding financials as she is a financial accountant and has been on scene since the beginning. Not sure where to turn to or how to begin again.

Question 3:

Gauteng

Am i entitled to claim back maintenance?

Question 4:

KwaZulu-Natal

I do not require legal advice. I want to attend the session as I intend to proceed with pupillage in the near future and this is one of the facets that I have a keen interest in. I would like the opportunity to attend this session to gain more knowledge on the topic and to understand how to handle problems of this nature.

Question 5:

Gauteng

I have twin girls turning 15 this Month. their Father had been paying R2500 maintenance for the last 3 years and 1 school fees and helps with School clothes for 1 child – he is supposed to buy them clothing for when he has them for holidays which hasn’t been done over 2 years – I barely can afford to buy them clothing and this holiday I am sending them to him with no much clothing so he is forced to buy for them while they there. He was supposed to get the girls a medical aid which never happened. They have it now because my Job gave that to me as a perk (which I am very grateful for) . My Salary without his maintenance after debt and deductions is only +/- R5000 which I have to buy food/electricity/fuel for my car/pay School Fees. I have asked him to increase it and I am not asking for a ridiculous amount of money but he hasn’t budged. The girls have needs and I feel he needs to play a bigger financial roll then he is. He is married with 2 other children. Beginning of this year he started working overseas. He comes back for 3 Months and goes back. I want to know if he isn’t in the country could his wife be summoned to court on behalf of him? Thank you.

Question 6:

Gauteng

I have a maintenance case we attend our first date than he said I need DNA to make sure that the kids yours DNA date was on 26 of October 2021 I go to court when I drive I found this guy send doctor letter he said I tested positive for COVID 19 but he come to sign our ob book Maintenance court is gonna help me

Getting divorce within 3 days
It often happens, when a marriage has irretrievably broken down, the parties are in agreement that they have to divorce. Furthermore, the parties came to an agreement regarding the propriety aspects of the marriage, care and contact of the minor children, as well as who should pay for the cost in relation to the divorce. If all the latter has been agreed upon, there is no need for the parties to wait many months to get divorced. What this article deals with is a real-life scenario where the marriage between a couple would be dissolved in the shortest possible time. In this case, three (3) days from the date of meeting their lawyer. If you don’t feel like reading this entire article, scroll down to the bottom for an illustration of a divorce finalised in 3 (three) days. Furthermore, it may become necessary for there to be a quick divorce. One such reason could be that a party is only visiting South Africa for a very short while and wants to resolve issues expeditiously. This would especially be so if the parties lived separately for a long time despite being married. Before we proceed with exploring and unpacking the question this article relates to, we will first have to look at certain basic requirements in order for parties to get divorced. This relates to the court’s jurisdiction, as well as the requirement that a marriage has broken down irretrievably. Another one is that they should be married. I guess we all knew that. [ninja_form id=72]

The jurisdiction of the divorce court

It does not mean that because you got married in a specific province or town that the Court situated there has the authority to divorce you. For example, if you married in Cape Town, and relocated to Johannesburg, and live there for quite some time, then Cape Town Court will not necessarily have the jurisdiction to divorce you. The same would apply should the parties have married in Johannesburg and relocated to the United States of America, and are domiciled there. Should they wish to get divorced, they cannot get divorced in Johannesburg. This is so as the Johannesburg Court will not have jurisdiction to divorce this specific couple. Now, what determines jurisdiction? Clearly, it is not the fact that you got married in the Court’s area of jurisdiction. Let’s look at the law.

The Divorce Act

Section 2 of the Divorce Act 70 of 1979 states the following: “A court shall have jurisdiction in a divorce action if the parties are or either of the parties is-

domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
Ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

Well, there you have it. It does not mean that if you got married within the area of jurisdiction of the court, that automatically, that Court would have the jurisdiction to divorce you. You or your spouse should at least be domiciled, or resided within that honorable court’s jurisdiction for a specific period. When we refer to domicile, we basically mean that you intend the specific location to be your permanent home. This is a simple definition. Now let us move on to the second issue. That is the irretrievable breakdown of the marriage.

Irretrievable breakdown of the marriage between the parties

It goes without saying, a court will not divorce a couple who is happily married. There has to be some problem in the marriage. Now let’s go straight into the law and find out when, or under what circumstances a Court of law may divorce you in South Africa.

The Divorce Act

According to section 4(1) of the Divorce Act: “A court may grant a decree of divorce on the ground of irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.” Section 4(3) of the Divorce Act then states: “If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconciliation.” Considering the latter law, it is clear that the marriage should have broken down irretrievably, in other words, it cannot be saved. Furthermore, it should not appear to the court that reconciliation is possible. So moving forward, presuming that the court has jurisdiction and the marriage has irretrievably broken down, we can now deal with the aspect of a quick divorce. That is why you are reading this article? We shall start with what is required in order to institute divorce proceedings.

The summons commencing the divorce action

As would be obvious from the foregoing, only a court of law can dissolve a marriage. Therefore, one needs to follow the legal processes in place in order for a court to deal with your matter. In the case of a divorce, the process starts with the issuing of a summons. Basically, this is a document outlining who all the parties are and what the Plaintiff (the person instituting the divorce proceedings) wants from the court. The summons would be signed by the Court Registrar who would direct the Sherriff of the Court to serve it on the Defendant (the other party to the divorce). It would also have attached to it, a particulars of claim, comprising of certain relevant information in order for the court and the other party to know what the reasons for the relief sought, or divorce is. This we deal with next.

The Particulars of Claim

In the case of a divorce summons, you will state who the parties are, when they got married, details of the minor children involved, and reasons for the breakdown of the marriage. With regard to the reasons for the breakdown of the marriage, you will state that for example, there is no longer any love and affection between the parties, and both parties wish to get divorced.

The latter information is stated in a document, called “particulars of claim”. This document is attached to the summons. The particulars of claim will then also outline the relief sought. For example, it will first state that you wish for a decree of divorce, and further what you wish in relation to care and contact in relation to the minor children, child maintenance, personal maintenance, the division of the joint estate, and who pays the legal fees. It is also wise for the parties to enter into a consent paper or settlement agreement. This we deal with next.

The Consent Paper or Settlement Agreement

You should stipulate in the particulars of claim exactly what you wish the court to grant you. However, what is a good idea, if the divorce is undefended, to enter into a consent paper or settlement agreement. This document basically outlines what the parties agree upon in relation to the divorce. It deals with child custody, maintenance, and the division of the joint estate if it applies. The parties would sign the consent paper or settlement agreement and it would be made an order of court should the court so grant it. Therefore, if you follow this route, the court would basically make an order stating that it grants a decree of divorce, incorporating the terms of the consent paper or settlement agreement.

The consent paper or settlement agreement may be entered into between the parties before divorce proceedings are instituted or after. If it is done before divorce proceedings are instituted, it is usually attached to the summons. Your prayers in your particulars of claim would basically be that you ask for a decree of divorce, incorporating the terms of the consent paper attached thereto.

What happens after the summons has been issued?

Let us presume that the summons, particulars of claim and consent paper have been drafted, and all documents have been signed. It should then be taken to a court to be issued and a case number is allocated to it. The next step would be for the summons with all the relevant documents attached thereto to be served on the defendant. This would be the case even though the divorce is agreed upon. Service of the divorce documents on the defendant would have to be done by the office of the sheriff. In other words, the sheriff would give a copy of the divorce papers to the other party, in this case, the defendant. A sheriff then provides a document called, “return of service”. Basically, it tells the court that he served the documents on the defendant. The defendant would then have a period of ten (10) working days to decide whether or not to defend the divorce. This is stated in the summons. A reason for defending would be that he or she opposes the divorce, or don’t believe the contact arrangements are in the children’s best interests. Once the ten (10) working days have passed, the divorce may be set down for hearing.

How quick can the divorce be finalised

Continuing with the example of a friendly divorce, once the ten (10) days have lapsed, and the defendant did not file a notice of his intention to defend the divorce action, the divorce can proceed on an undefended basis. The Plaintiff or the person who instituted the divorce proceedings may then set the divorce matter down for hearing on an undefended basis. If the divorce was instituted in the Western Cape High Court, it could be set-down within three (3) days. For example, if the ten (10) days have expired, The Plaintiff may file his notice of set-down the Monday before noon with the Registrar, to be heard on Wednesday. This is explained at the end of this article.

Waiving the ten (10) ten days waiting period – The waiver

This is where this article becomes interesting. It is also possible under certain circumstances, for a defendant to file a waiver. Basically, the defendant would file a document stating that he waives his right to ten (10) days to decide whether or not he wants to defend the divorce. If a waiver is filed, and the court has no issue therewith, then the divorce can take place much sooner than ten (10) days. This we explain a bit more next.

Demonstrating a quick divorce

Considering the above and, ensuring that all legal processes are in place, a divorce can be finalised very quickly and in certain circumstances, within a few days. As long as the court has jurisdiction to hear the matter and the marriage has broken down irretrievably, there is no reason why the divorce can’t take a maximum period of four weeks to finalise. If, however, the divorce is urgent and undefended it is possible for the defendant to file a waiver advising the court that he has no issue with a divorce taking place within the ten (10) days given to him. His reason for this could also be that he and the Plaintiff entered into a Consent Paper and wants the divorce as well. In this case, the divorce could take three (3) days. This would apply in the following hypothetical example:

Monday:

Meet with the fast and efficient lawyer (or give us a call to refer you to one);
Draft the summons, particulars, consent paper;
Sign the consent paper and issue the summons;
Serve the summons on the defendant by the sheriff;
The defendant signs a waiver;
File the consent paper at the office of the family advocate for endorsement; and
Ensure the court file is in order and set the matter down before noon.

Tuesday:

Collect the endorsed consent paper from the office of the Family Advocate.
Meet with your lawyer, or one of our recommended lawyers, to prepare you for court the next day.