Maintenance and divorce – Remedies for payment default

In terms of a court judgement by a divorce and maintenance court, it is ordered that a monthly maintenance (or alimony) be paid to you by the other biological parent of the minor children. As a single parent, you struggle to meet your financial obligations, while your ex-husband or ‑wife live in the lap of luxury, drive expensive cars and go on overseas holidays without paying maintenance.

What are your rights and what can you do?


First step: Criminal complaint

In terms of Section 31 of the Maintenance Act, 1998 (Act No 99 of 1998), as amended, you have the right to lay a criminal complaint against the person who is legally required to pay. This means that the State will institute criminal charges against and prosecute this person in a similar manner as with a case of someone driving under the influence. If found guilty of the offence, the person is punishable with a fine or imprisonment for a period of up to three years, or only imprisonment without the option of a fine.

In terms of Section 31(2) of the Act, a defence against prosecution may be that non-payment is the result of a lack of financial ability. The person would not be entitled to acquittal in terms of such a defence if it can be proven that his/her failure to pay stems from an unwillingness to work or misconduct.

The complainant will have to complete form J470E at the maintenance officer at the Maintenance Court, who will start the procedures officially, and with the necessary proof and facts.


Second step: Civil execution

Sections 24 and 26 of the Act stipulate that, when a person against whom a maintenance order has been issued fails to make such payment, the order is enforceable in terms of the amount that the person has failed to pay, with interest, through

  • A Warrant of Execution for the removal of property to be sold at auction. If the movable property proves inadequate to pay off the debt in arrears, immovable property such as houses may be confiscated (Section 27(1))
  • Attachment of the wages of the debtor (a court order that the maintenance be deducted from the person’s salary by an employer before the salary is paid over to the debtor (Section 28))
  • Order for the attachment of any debt (Section 30)

This means that movable property such as vehicles and furniture may be attached and sold to pay the arrears maintenance and interest to you.


Third step: Credit bureau and records

In terms of recent amendments to the Maintenance Act (Act 9 of 2015) (Section 26), a maintenance officer has the right to divulge the name of the person against whom an order was directed to any business or enterprise that provides credit or is involved in the determination of the creditworthiness of people (Section 26 (2A)).

The purpose is to prevent a person who owes you maintenance from purchasing a new TV or vehicle on credit unless all maintenance in arrears has been paid.


Conclusion

The maintenance process in the courts can become a drawn-out affair and technical process if you do not have the right support. Before deciding to take steps against a maintenance defaulter, make an appointment with a good divorce and maintenance lawyer that can help you with the forms and process.

Legal costs should also not discourage you from stand up for your rights. Talk to your lawyer about a monthly payment agreement. Most lawyers are open to such discussions.

Many people are discouraged by the process and the “paper war” to claim their rights, but remember: As a parent, you must always act in the best interests of your children. Always set your children’s opportunities and best interests before the inconvenience of the process.

Email us at admin@hfglaw.co.za if you have any queries about the process.

Source: Maintenance Act, 1998 (Act No 99 of 1998), as amended.

Hein Gonzales
Owner: HFG Attorneys
Paarl
087 255 9777

About HFG

HFG Attorneys Inc. was established in March 2018 after opening the doors in the winelands valley of Paarl, Western Cape. The company’s head office is based in Paarl, but assists its clients anywhere in South Africa when needed.

Family Law & Divorce Services

Company Details

HF Gonzales Attorneys Inc. t/a HFG Attorneys (Registration number: 2018/540437/21)