The Maintenance act – what can you do if he doesn’t pay by Noa Kinstler (attorney)

 

 

The Maintenance Act 99 of 1998 restated the common law duty of parents to support their children.

What orders can the maintenance court make?

Where there is no maintenance order in force:

  • Order the person who has been proved liable to maintain someone to pay money towards that person’s maintenance;
  • Stipulate the manner, duration and times of payment;
  • Order payment be made in cash or into a bank account by way of a debit order;
  • Include an order for medical expenses or an order that the person to be maintained be registered as a dependent on a medical aid;
  • Include an order for educational expenses including extra murals, uniforms, stationery, tertiary education etc

Where a maintenance order is in force:

  • Make an order replacing the existing order;
  • Cancel the maintenance order;

How to enforce maintenance orders?

When a maintenance order has been made and a person fails to make payment in accordance with such order, the order is enforceable in respect of such amount together with interest.

The remedies available are:

  • Execution against property – In terms of Section 37, a Warrant of Execution may be issued by the Court where various orders have remained unpaid for a period of 10 days. Firstly a warrant will be issued against the movable property but if the movable property is insufficient to cover the debt, immovable property will be attached and sold on auction
  • Attachment of emoluments (garnishee orders) – In terms of Section 28,a garnishee order can be issued where various orders have remained unpaid for a period of 10 days. The order will be issued and served on the employer in question.
  • Attachment of debt –  On application by a person in whose favour an order was made, the Court may make an order for the attachment of any debt at present or in future owing to the person against whom the order was made for the amount necessary to cover the amount that person has failed to pay, together with interest and costs of the attachment.

Criminal sanctions

A person who fails to make payment in accordance with a maintenance order is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding one year or to imprisonment without the option of a fine.

 

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