What to do when there is a maintenance order that isn’t being upheld? by Jennifer Stoler (Attorney)

In South Africa is it obligatory that both parents of a child/ren are to maintain them according to their needs.

Parents are therefore compelled to attend to all the child/ren’s reasonable needs, which include, but are not limited to: housing, education, clothing, medical care etc. What will determine the child/ren’s reasonable needs will be the standard of living of the family, as well as consideration of the family’s income.

When a court grants a maintenance order, a court will consider the joint duty of the parents, the reasonable and financial needs of the child/ren, as well as the parent’s ability to care for the child/ren and to what extent.

A parent’s duty to pay maintenance continues regardless of the child/ren’s age, and lasts until the child/ren is self-supporting, adopted or the parent/s have died. Once a child/ren has attained the age of majority (18 years), the duty shifts on to the child/ren to prove what further maintenance he or she will require. The child/ren will then pursue this matter.

If neither parent can maintain the child/ren, the duty to support the child/ren will pass on to the child/ren’s grandparents. If they are unable to support the child/ren the responsibility will then pass on to any siblings, provided that they are able to support the child/ren. In the case where a parent has died, the child/ren will have a claim against the deceased parent’s estate.

This article however mainly focuses on how to enforce a maintenance order that isn’t being complied with.

When a party against whom a Maintenance order was made, fails to pay, in terms of such order for a minimum period of ten days, the other party may apply to the Court for authorisation to issue a Warrant of Execution. The Warrant of Execution must be issued by the Maintenance Court and the original Warrant plus a copy, must be handed to the Sheriff or Maintenance Investigator for execution. The person against whom a Warrant of Execution has been issued, may apply to the Maintenance Court to have the Warrant of Execution set aside or suspended.

The party may also make application for the attachment of emoluments in respect of the period for which the party failed to pay, and/or for future maintenance payments. The effect of such an Order is that the Respondent’s employer will be required to subtract the amount owing from the Respondent’s salary and to pay such amount to the Applicant.

A party may also apply to the Court for the attachment of debt owing to the Respondent, or attach any of his/her assets as well as any pension fund.

Failure to pay maintenance is a criminal offence and the Respondent may face a fine or imprisonment for up to a period of one year, or both. The Respondent may also be blacklisted.

In order to avoid punishment, the Respondent must show the Court that he/she was unable to pay as a result of lack of income or funds.

To this end, it is unfortunate that many parents to do not comply with their maintenance duties and that the innocent party would need to go through the above in order to enforce same.

For all your maintenance needs you can contact Jennifer Stoler at Schindlers Attorneys at stoler@schindlers.co.za

http://www.schindlers.co.za

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