Where an ex-spouse is in arrears with maintenance, the first step would usually be to enforce the maintenance agreement / order via the courts. However, should the spouse not have an income or ability to pay or physical assets that can be executed against, our courts have afforded the affected spouse another avenue to recover arrear maintenance.
In a recent judgment, the North Gauteng High Court, Pretoria ordered that an ex-spouse be placed under provisional sequestration. The ex-spouse did not have physical property that could be executed against, but had shares in a family trust and business trust that could, amongst other assets, be used to settle the arrear maintenance. For such provisional sequestration, the Court had to consider Section 10 of the Insolvency Act, which requires that for such an order to be granted:
- the petitioning creditor (owed spouse) must establish a claim against the debtor entitling him or her to apply for the sequestration of the debtor’s estate;
- the debtor must have committed an act of insolvency or the debtor must be insolvent – this requirement was met in this case, as the Sheriff confirmed that they had not been able to execute anything against the debtor; and
- there must be reason to believe that it will be to the advantage of creditors if the debtor’s estate is sequestrated.
Based on these requirements being met, the court granted the order for provisional sequestration of the ex-spouse. The ex-spouse would at a later stage be able to approach the court to provide reasons why a final order of sequestration should not be made, failing which he will be sequestrated and his assets fall to the trustee of his estate to be sold to pay his debts, which will include the arrear maintenance.
This confirms that sequestration is a possibility to recover arrear maintenance, although not necessarily the first or most speedy course of action. Our advice is to consult with your attorney as to other options available to recover arrear maintenance and only as a last resort consider bringing an application for sequestration against your ex-husband.