UNDERSTANDING ANTI-DISSIPATION ORDERS AND THEIR RELATION TO CHILD MAINTENANCE

This article explains the term dissipation and its relation to the maintenance of children as set out in court orders.

The term dissipation comes from the word “dissipate” which means to waste or use up. When it comes to assets, this is when one party uses or gets rid of an asset for their benefit with the intention of evading or hiding it from another person who has a vested interest.

According to the Children’s Act, 38 of 2005, one of the many responsibilities of a parent besides providing care and contact is to maintain their child. Parental responsibility is not just limited to married or unmarried couples but extends to couples who were previously married and who are now divorced as well as unmarried fathers.

Fathers have just as many rights and responsibilities to their children, which would include the duty to maintain them.

You are considered a father with legal rights and responsibilities:

1. If at the time of the birth of the child you were living in a permanent relationship with the mother;
2. Whether you had lived with the mother or not:
   1. You consented to and applied to be identified as the child’s father, or according to Customary Law pay damages for getting the mother of the child pregnant;
   2. You contribute or attempt to contribute to the upbringing of the child for a reasonable period;
   3. You contribute or attempt to contribute towards the expenses connected to the maintenance of the child for a reasonable period of time.

The Maintenance Act, 99 of 1998 provides a guideline for the calculation of maintenance but ultimately one is to look at the circumstances of each child upon investigation. The parent who does not have primary residence over the child will usually be ordered by a court to pay monthly maintenance to the primary caregiving parent.

When determining the actual amount of maintenance, consideration is given to the costs related to food, day-to-day living expenses, clothing, education, medical expenses and the parent’s finances.

Maintenance orders may be granted by way of consent or by way of a complainant instituting action against the other parent who has a real responsibility to pay maintenance. This complaint is investigated by the Maintenance Court and an order for maintenance is granted. These orders have the same effect as any other civil court order and just like any other order, a breach of such would be considered contempt of court.

You may now be wondering how the maintenance of a child relates to dissipation. Dissipation doesn’t only relate to money but the assets that someone has and the way in which they use them.

Many parents who aren’t the primary caregivers (statistically unmarried fathers) claim that they cannot afford the monthly maintenance of their children. However, it can at times be found that they in fact have various income-generating assets such as houses and vehicles.

A primary caregiving parent can apply for judgment for non-payment and execute on the defaulting parent’s assets. However, in certain instances, the defaulter sells off their assets as a way to evade their responsibility to pay child maintenance. This is the dissipation of an asset to the defaulting parent’s benefit but to the detriment of the other parent and child who have a vested interest.

In a new breakthrough case of SR V DR AND ANOTHER (2980/2007) [2022] ZAGPJHC 172, an urgent antidissipation application was instituted for maintenance that was to be paid for the Respondent’s children, which had not been paid since 2008. The Respondent was selling one of his properties in order to pay his outstanding debts. The Applicant requested the court to interdict the Respondent from dissolving his assets as he was purportedly doing so to avoid paying maintenance for his children. The court ordered that the proceeds from the sale of the property were to be held in the trust account of the conveyancing attorneys until such time as the arrear maintenance was calculated and thereafter paid to the Applicant.

Our legislation is clear: your right to own and dispose of property does not outweigh your responsibility to pay maintenance. To dissipate your property in order to evade your parental responsibility is illegal and could end up causing many unwanted consequences to yourself and your estate.