Written by: Eugene van der Walt | Afrikaanse weergawe
A maintenance order is a court order. When the person who is meant to pay it simply stops, the effect on the parent left carrying the cost, and on the children who depend on it, can be severe. The good news is that South African law gives you real tools to enforce payment. Here is how they work.
What Maintenance Covers
Maintenance is the financial support that one person is legally obliged to provide to another. Most commonly it is support that a parent must pay toward the reasonable needs of their child, including food, clothing, housing, education and medical care. It can also include spousal maintenance payable between former spouses. The duty to maintain a child rests on both parents according to their respective means, and it does not disappear simply because the parents were never married or are no longer together.
When the Payer Falls Behind
If a maintenance order is in place and the person obliged to pay, known as the maintenance defaulter, fails to do so, you are entitled to approach the Maintenance Court to enforce the order. You do not have to simply absorb the loss. The law treats non-payment of maintenance seriously, precisely because the people who suffer most are usually children.
How the Order Can Be Enforced
The Maintenance Act provides several mechanisms to recover what is owed, and they can be used in combination.
- Emoluments attachment order. The court can order the defaulter’s employer to deduct the maintenance directly from their salary each month and pay it over to you. This is one of the most effective remedies where the defaulter is formally employed.
- Attachment of debt. Where money is owed to the defaulter by a third party, such as funds in a bank account, the court can order that this be attached and paid toward the arrears.
- Warrant of execution. The sheriff can attach and sell the defaulter’s movable property to recover the outstanding maintenance.
- Criminal prosecution. Failure to pay maintenance is a criminal offence. A defaulter can be prosecuted and, on conviction, face a fine or imprisonment. The threat of a criminal record is often a powerful motivator.
- Reporting to credit bureaus. The details of a maintenance defaulter can be reported to credit bureaus, which affects their ability to obtain credit and is another meaningful lever.
What You Need to Do
To enforce a maintenance order you will generally need to show the Maintenance Court the existing order and proof of what has and has not been paid. Keeping clear records is therefore essential. Bank statements, receipts and a simple log of payments received and missed will make enforcement far quicker and stronger. If there is no order in place yet, the first step is to apply to the Maintenance Court for one.
If Your Circumstances Have Changed
The system works both ways. A person who genuinely cannot afford to pay the amount ordered, perhaps because they have lost their job or their income has dropped, should not simply stop paying. Stopping payment without a court’s approval is what creates criminal liability. The correct course is to apply to the Maintenance Court for a variation of the order based on the changed circumstances. The court can then adjust the amount fairly, on the record, and lawfully.
A Word of Encouragement
Many parents left without maintenance feel powerless, but they are not. The law is firmly on the side of the child’s right to support. Whether you need to obtain an order, enforce one that is being ignored, or vary one that no longer fits your circumstances, these are exactly the kinds of matters the Maintenance Court exists to resolve, and you do not have to navigate them alone.
Van Der Walt & Associates assists clients with maintenance applications, enforcement, variations and all aspects of family law. Contact us for an initial consultation.
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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.