In terms of Section 16(1)(b) of the Maintenance Act, 99 of 1998 (“the Maintenance Act”), the maintenance court may – in the case where a maintenance order is in force:
(i) Make a maintenance order in substitution of such (existing) maintenance order; or
(ii) Discharge such maintenance order.
In the matter of M v M (A301/17) [2018] ZAGPPHC 607, Heystek AJ explores the grounds for a variation or discharge of a maintenance order.
According to Heystek, the Maintenance Act does not provide a test to be applied when application is made for the variation or discharge of a maintenance order, however, confirms that instructions can be found in other legislation. Section 8(1) of the Divorce Act 70 of 1979 states that a maintenance order may be varied if the court finds that there is sufficient reason therefor and Section 10(2) of the now repealed Matrimonial Affairs Act 37 of 1953 required good cause for a variation. The onus of showing good cause rests on the party who seeks the variation.
In the matter of Roos v Roos 1945 TPD, Schreiner J stated the following:
“Variation will be ordered not only in cases of breach by either party, but because there has been such a change in the conditions that existed when the order was made, that it would now be unfair that the order should stand in its original form.”
This is now the main accepted ground and implies that in general a court will only order variation of an existing maintenance order where there has been a change in conditions. This sentiment was echoed in Havenga v Havenga 1988 (2) SA 438, in which Harms J stated that in the absence of a real or substantial change in circumstances, there would not be sufficient reason for a change.
Heystek confirmed that in considering whether the onus has been discharged by the parties before the maintenance court may substitute or discharge the existing maintenance order, the matter is entirely in the discretion of the court. Heystek further confirmed that a variation order should not be granted as a matter of course, and that the discretion conferred upon the court to vary its order should not be too readily exercised. In the case of Davis v Davis 1993 (1) SA 293 (SE) it was held that no invariable rule could be formulated in respect of the test to be applied when applying for the variation of a maintenance order and that the court always had to have regard to the circumstances of each case. The courts are generally reluctant to vary orders for maintenance once given where difficulties to meet the obligations stemmed from a voluntary undertaking of extra commitments. It is further held that an increase in the cost of living does not by itself provide sufficient grounds for a variation.
In terms of s 25(1) of the Maintenance Act, any person aggrieved by any order made by a Maintenance Court under the Act may, within such period and in such manner as may be prescribed, appeal against such order to the High Court having competent jurisdiction.
In summary: A person who wishes to apply for a reduction of maintenance must substantiate their claim by proving the following:
- A reduced income; and
- the inability to pay the current maintenance otherwise.
In cases where a person cannot objectively prove a change in circumstances, an application for a reduction in maintenance will not succeed.
In cases where a change is circumstances can in fact be proven the Applicant should apply to court where they, or the children ordinarily reside. A From B [J107] must be completed and submitted to court, together with the necessary proof.
Contact our offices to find out more about your rights and how to apply for a variation or a discharge of a maintenance order.
Bill Tolken Hendrikse Inc.
Tel: 021 944 3072 /3011
