Written by Raquel Simões
30 January 2024

What Happens When a Parent Fails to Pay Maintenance by Court Order?

Child maintenance is a critical aspect of parental responsibility, as it contributes to ensuring the best interests of a child are well provided for. Financial support is of paramount importance for a child’s essential needs. The consequences can be profound when a parent fails to meet their obligation to pay child maintenance, which affects both the child and the custodial parent in the long run.

What Legal Framework Governs Child Maintenance In South Africa?

South Africa’s child maintenance legal framework is primarily governed by the Maintenance Act 99 of 1998 (hereinafter the “Maintenance Act”). This legislation outlines parents’ rights and responsibilities regarding the financial support of their children. Section 28(2) of the Constitution states that “a child’s best interests are paramount in every matter concerning the child.”

What Are The Responsibilities Of The Minor Child’s Parents?

Section 15(3)(a) of the Maintenance Act obligates both mother and father to support the minor child equally according to their own financial means. Unfortunately, many parents fail to maintain their minor children, which in turn has a negative effect on that child.

How Does Non-Payment Affect The Child’s Best Interests, Well-Being And Development?

Insufficient financial support impacts the minor child’s access to education, adequate healthcare, and other essential needs and may even hinder the child’s overall development.

What Civil Remedies Are Available To Parents To Recover Arrear Maintenance?

Section 26(1)(a) and (b) make provision for various civil remedies for the recovery of arrear maintenance, namely:

  • a warrant of execution;
  • an attachment of emoluments; and
  • an attachment of debt.

Who Grants A Warrant Of Execution, And What Property Can Be Attached?

Section 27(1) of the Maintenance Act states that a warrant of execution can be granted by the Maintenance Court against the movable property of the non-compliant parent to ensure payment of the maintenance amount in arrears. Suppose the movable property attached is insufficient to recover arrear maintenance. In that case, the non-compliant parent’s immovable property can be attached and sold in execution to satisfy the necessary arrear maintenance.

What Is The Attachment Of Emoluments?

An attachment of emoluments is an order granted by the Maintenance Court that orders the non-compliant parent’s employer to deduct the amount specified in the order from the emoluments (salary, wages, or any other form of remuneration) of the non-compliant parent. These amounts are deducted in order to satisfy or recover the arrear maintenance and will continue until the arrear maintenance has been fully paid, as stated in Section 28(1)(b) of the Maintenance Act.

What Is The Attachment Of A Debt?

Section 30(1) of the Maintenance Act allows the Maintenance Court to order the non-compliant parent who incurred arrear maintenance to make payments within the time and manner specified, which will allow for the recovery of arrear maintenance.

Is There a Criminal Remedy For Failure To Pay Maintenance?

Failure to comply with a maintenance order may result in a criminal offence punishable by law, either by way of a fine or imprisonment. The Maintenance Amendment Act 9 of 2015 increased the sentence for failure to pay maintenance from a period not exceeding one (1) year imprisonment to a period not exceeding three (3) years imprisonment!

The consequences of non-payment of child maintenance have a negative impact on the other biological parent of the child and, most importantly, the best interests of the child. The remedies under the Maintenance Act should be applied thoroughly and diligently so that the courts can impose effective and appropriate sentences accordingly.

Arrear Maintenance Recovery. Claim and Apply Today.

Child maintenance is a very sensitive field of law, and it is vital that you feel at ease with the family law attorney you entrust with your matter. Contact one of Burger Huyser Attorneys’ experienced family law and child maintenance attorneys to see how we can assist you in recovering arear maintenance.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE