Parent Not Paying Child Support In Terms Of An Existing Maintenance Order?

What can I do if the biological parent does not pay child support in terms of an existing maintenance order? According to the Maintenance Act, non-compliance with a maintenance order is a criminal offence unless the reason for non-payment is due to a lack of means. The Act describes various ways to enforce maintenance orders when an ex-spouse is refusing to pay and to force them to pay the defaulted amount. These enforcement methods include:

  1.  warrant of execution against their property;
  2. the attachment of emoluments; and
  3. the attachment of debts.

Warrant of Execution

A warrant of execution against property is a court order which allows the property of the ex-spouse to be attached and sold in order to satisfy the amount of maintenance they have failed to pay. According to the Maintenance Act, the immovable property of the person who has a maintenance order against them is only attached when they do not have enough moveable property to cover the debt.

Attachment of Emoluments

An attachment of emoluments, or garnishee order, results in the automatic deduction from the ex-spouse’s monthly salary in order to satisfy the maintenance in arrears. These orders may also be granted to guarantee future maintenance payments.

Attachment of Debt

A maintenance court may make an order attaching any debt that is owing or will be owed to the ex-spouse for the amount of maintenance that they have defaulted on. As a result, any debts that are owed to the ex-spouse will become owed to the person to whom the maintenance is owed.

Attachment of Pension Fund

In recent cases, the maintenance court has allowed for the attachment of the ex-spouse’s pension fund. This usually occurs when the other methods of recovering defaulted maintenance have been unsuccessful. These orders allow the person to whom the maintenance is owed to claim the defaulted amount from the pension fund, provident fund, preservation fund or retirement annuity fund of their ex-spouse.

Offences and Penalties

The Maintenance Act in South Africa states that any person who fails to pay maintenance according to the court order granted against them commits a criminal offence and can be convicted to a fine or imprisonment not exceeding one year.

There are therefore various ways to make sure that your ex-spouse pays the maintenance that they owe and ensure that they keep up to date with the maintenance awarded to you in a court order. Contact our specialist maintenance lawyers for child maintenance and spousal maintenance matters.