If you have a maintenance order against a person to who refuses to pay maintenance, you do have certain avenues to explore to have maintenance paid.
WHAT DO I DO WHEN HE REFUSES TO PAY MAINTENANCE?
You must attend at the maintenance officer at your district magistrate’s court and report the failure to pay to the maintenance officer.
The defaulting party may have a maintenance order enforced against him/her if the they fail to pay maintenance within ten days from the date that payment was due and may be ordered to pay interest on the arrear maintenance (that is maintenance that is due and owing but that has not been paid).
You can lay a criminal charge against the defaulting party in terms of a maintenance order and they will be criminally charged in terms of Section 31 of the Maintenance Act.
If convicted, they can be fined or sentenced up to twelve months’ imprisonment. In addition, you must apply for an order enforcing the maintenance order. This is to be done in the area in which the defaulting party resides.
The maintenance court can make one of the following orders in enforcing the maintenance order:
1) Execution against the defaulting party’s property (this is a process whereby the maintenance defaulter’s property is sold and the proceeds of the sale are used to pay the maintenance);
2) Emoluments attachment order (often incorrectly referred to as a ‘garnishee’ – this is a process whereby the maintenance and outstanding amounts are paid directly by the employer from the maintenance defaulter’s salary or wages);
3) Attachment of any debt (this is a process whereby a third party who owes the maintenance defaulter money will be ordered to pay you, rather than the maintenance defaulter).
In addition, maintenance defaulter’s pensions, and other benefits may be used to settle a maintenance debt.
WHEN THE DEFAULTING PERSON IS UNEMPLOYED
Even if the defaulting person is unemployed, they are still legally obliged to pay maintenance, although the amount can be amended to accord with their means.
However, if the defaulting party proves that they have no means to pay maintenance and that it is not due to unwillingness to work or wrongdoing on their behalf; a court will not enforce a maintenance order.
DO NOT BE DISILLUSIONED THAT THIS PROCESS IS A QUICK OR PAINLESS ONE
More often than not, many trips will be made to the maintenance court and many days wasted but in the end, if you are successful, your children will be the ones that benefit.
Most of these procedures are ‘self help’ and an attorney is not required. However, if you feel it would be in your interests to have an attorney represent you, we suggest that you contact one to discuss your individual situation.
ABOUT THE AUTHOR
Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za