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Is inability to pay sufficient cause for the variation of a maintenance order?

by Hayley Langdon

The Western Cape High Court recently addressed this question in the appeal matter of Blomerus v Blomerus (A461/2010) in which the appellant appealed against a variation order of maintenance payable in respect of minor children.

Approximately three (3) months after the parties were divorced, the respondent requested a substitution of the maintenance order in terms of section 6(1)(b) of the Maintenance Act and cited his reason as “inability to pay”.

The application was opposed by the appellant on the basis that no good cause existed for the variation.

The Magistrate in the court a quo held a full enquiry into the income and expenditure and granted an order reducing the maintenance payable per child.

The Appeal court needed to determine whether the respondent succeeded in showing that a good cause existed for the variation.

In Havenga v Havenga 1988(2) SA 438 (T) the court held that in general, in the absence of a real change in circumstances there would not be sufficient  reason for the variation or rescission of a maintenance order.

The court held that special regard must be had to the respective financial means of the parties, with particular reference to the question of whether their relative financial position has changed since the date of the order sought to be varied.

The respondent failed to show that his financial circumstances had deteriorated and therefore failed to show good cause existed for the variation. Therefore despite the respondent possibly, although unlikely in this matter, not being able to afford the maintenance order, the appeal succeeded.

16 September, 2011

**Please note that these comments are summarised, may not be applicable to your particular situation and do not constitute legal advice. Please consult your legal professional should you wish to obtain a formal legal opinion.**