If the father of your child fails to meet his child support obligations as outlined in an existing maintenance order, you may wonder about your legal recourse. Under the Maintenance Act of South Africa, disregarding a maintenance order constitutes a criminal offence unless the non-payment is due to genuine financial hardship. The Act delineates various avenues for enforcing maintenance orders when a father or ex-spouse refuses to comply and ensures the settlement of overdue amounts.
Is there an excuse for non-payment of maintenance?
In South Africa, there is no blanket excuse for non-payment of maintenance. However, the law recognizes genuine financial constraints as a valid reason for non-payment. If someone cannot pay maintenance due to a lack of means, they can provide evidence of their financial situation to the court. The court will then assess whether the inability to pay is legitimate. If the court determines that the individual genuinely cannot afford to pay, alternative arrangements may be made, such as a reduced maintenance amount or a payment plan. It’s important to note that simply claiming inability to pay without evidence will not excuse non-payment and may lead to legal consequences.
What Legal Procedure Can I Follow If a Father Fails To Pay Maintenance?
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Civil Enforcement of Maintenance
Through the Magistrate, the court may order one of the following: Emolument attachment, attachment of debt and/or execution of movable/immovable property. These enforcement measures are expanded on below:
Warrant of Execution
A warrant of execution against property is a court-issued directive allowing for the attachment and sale of the ex-spouse’s property to satisfy outstanding maintenance payments. The immovable property of the individual subject to the maintenance order is attached only if their movable assets are insufficient to cover the debt.
Attachment of Emoluments/Garnishee Order
An attachment of emoluments, also known as a garnishee order, entails the automatic deduction of the ex-spouse’s monthly salary to clear arrears in maintenance. Such orders may also be utilized to secure future maintenance payments.
Attachment of Debt
A maintenance court may issue an order attaching any debt owed or to be owed to the ex-spouse to cover defaulted maintenance payments—consequently, debts owed to the ex-spouse become payable to the maintenance recipient.
Attachment of Pension Fund
In cases where other recovery methods prove ineffective, courts may authorize the attachment of the ex-spouse’s pension fund. This enables the maintenance recipient to recover defaulted amounts from various retirement funds owned by the ex-spouse.
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Criminal Prosecution
A warrant of arrest can be issued as the respondent failed to comply with a court order.
Offences and Penalties
The Maintenance Act in South Africa stipulates that failure to comply with a maintenance court order constitutes a criminal offence, punishable by a fine or imprisonment for up to one year.
In conclusion, several legal avenues exist to ensure compliance with maintenance obligations and timely payment of court-awarded maintenance. Do not hesitate to contact our specialist maintenance lawyers for expert assistance in child maintenance and spousal support.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
