Who can have a say in how maintenance is spent by the custodian parent?

When is enough, enough?
When is enough, enough?

When it comes to maintenance, local law is clear, and provides for the child, but in reality there are many tricky situations that call for more detailed legal information.

In an effort to help parent's struggling with maintenance issues, Parent24 is speaking to legal professionals and experts to outline the laws on maintenance, and provide some insight into this often contentious issue.

Follow the #MaintenanceMatters series here

This parent wrote to us asking if a maintenance paying parent has any say in how maintenance is spent by the custodian parent. 

Dear Parent24,

My question is when is enough, enough? 

When my husband got divorced he obviously had a maintenance agreement with his ex which I am proud to say that he has kept to 100% and some! His ex wasn't working, but she assured him that she would look for employment as he was (and still is) paying her an exorbitant amount, where he was left with very little.

Recently her boyfriend has just moved in with her in the house that my husband pays for. Aside from my husband's ex and his daughter, my husband's exs mother also lives in that residence.  

When the boyfriend moved in my husband respectfully asked If he could at least contribute towards the accommodation of which he was not given a kind reply. Now the ex asked if we could add the boyfriend onto the car insurance, which we pay for. 

In that household there are now 3 adults, along with my husband's daughter, and none of them work whilst my husband continues to pay up. He works ridiculous hours and I work two jobs just to make things meet on our side.

Please don't get me wrong: I love my stepdaughter and will do anything myself to make sure she has what she needs, but the fact that none of the 3 of them work and my husband must still just pay is distressing to us both.

Is this the way things must be and we must just suck it up and keep paying while they take daily long walks on the beach, or does my husband have any right to say enough, it's time that they also start contributing? 

Thank you,

Concerned Stepmom

In short: Can the maintenance paying parent have a say in how the money is spent by the custodian parent? 

We spoke to Alexandra Shardlow, an attorney at Di Siena Attorneys, who provided the following insight:

At the outset, when your husband and his ex-wife concluded an Agreement of Settlement no doubt it made provision for the payment of maintenance both for his 14 year old daughter, as well as his ex-wife. 

So the first thing to ascertain is whether the agreement of settlement provides for spousal maintenance to be paid indefinitely until death or remarriage, alternately co-habitation, or further alternately whether the maintenance was to be paid on a rehabilitative basis.

Rehabilitative maintenance 

Rehabilitative maintenance is payable by one party to their ex-spouse for a certain period of time, usually anywhere between approximately six months and three years.

This is to enable a spouse who has been out of the workplace for a certain period of time to skill themselves up, with a view to securing adequate employment which shall subsidise their own living expenses.

Spousal maintenance

The second thing to consider is whether there is a dum casta clause in the agreement of settlement.

A dum casta clause provides that spousal maintenance shall be payable in respect of an ex-spouse until such time as they remarry (this principle has of recent times been extended to provide for co-habitation with another person in a relationship similar to that of marriage).

To the extent that the agreement of settlement provides such clause, the ex-wife’s entitlement to maintenance ceased when she began co-habiting with her boyfriend. 

Further, your husband’s maintenance obligations extend only to that of his ex-spouse and his minor daughter. Insofar as her mother is concerned as well as her current boyfriend, they are adults and are legally obliged to contribute to the running of the home in which your ex-spouse and minor child live.

Pro rata contribution

When calculating the pro rata contribution in respect of their living expenses, one would allocate 2 units to an adult and 1 unit to a child. As such, one may allocate one eighth of the living expenses to your daughter with a quarter thereof being allocated to your wife and the remaining 50% allocated to your wife’s boyfriend and her mother.

As such, your husband is only legally obligated to contribute to that portion allocated to his ex-wife and daughter.

A substantial and material change

However, the fact that two adults who are capable of employment have now joined your wife and are residing in the home constitutes a substantial and material change in circumstances since the granting of the divorce order, when no doubt your husband foresaw only paying spousal and child maintenance.

As such, your husband may approach a Maintenance Court having jurisdiction situate in your local Magistrate’s Court for a downward variation and reduction in the maintenance payable having regard to the substantial and material change of circumstances which exists having regard to the additional adults residing in the home.

Re-look the existing agreement 

Shardlow concludes that as such, her advice would be to firstly check the agreement of settlement with regards to the spousal maintenance referred to hereinabove and to the extent that same does not assist your husband, that he approach a Maintenance Court having jurisdiction for a variation to the current maintenance payable.

Or in other words, it's a good time to revisit the existing settlement. 

Compiled for Parent24 by Elizabeth Mamacos 

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