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Non-compliance with Maintenance Orders — Civil and Criminal Remedies

ByOur Lawyer

Non-compliance with Maintenance Orders — Civil and Criminal Remedies

I have a maintenance order for my children – but the father of my children does not pay. Is this allowed? What can I do?

Non-compliance with Maintenance Orders — Civil and Criminal Remedies

[Updated on 17 October 2018]

advice-child-maintenance-child-custody-divorceMany mothers (and sometimes fathers) go through great lengths to obtain a maintenance order against the other parent. This the mother found necessary as the father either did not want to pay child support at all, or not an adequate amount. The mother then had to approach the maintenance court, for assistance. The process could have taken many months and sometimes, over a year to finalise. But now that she has the Order, he still does not pay. Can she do anything? Or does she only have in her possession a useless piece of paper with the word “Order” written on it?

Before we tackle the above scenario, this blog post does not only deal with non-compliance with maintenance orders originating in the maintenance court. Most divorce orders made, where there were minor children involved have in it child maintenance provisions. The divorce court (High Court or Family Court) would not divorce the couple unless it is satisfied that the child’s best interests are taken care of after a decree is granted. And in many cases, the divorce could have taken months, if not years to finalised. And in those very cases, the amount of child maintenance to be paid was the stumbling block.

Moving forward, this blog post would then be useful to anyone that has a maintenance order in place, and which is not being complied with. The provisions that are not being complied with may either relate to the cash component, school fees, medical aid and so on. Some maintenance orders are vague which causes problems when it comes to its enforcement. Therefore, ensure that your maintenance order is simple, and to the point.

What can the mother do if the father does not pay maintenance?

There are a few routes a parent can follow when a maintenance order is not complied with. For the purpose of this article, we will presume that the Maintenance Order was granted in the Maintenance Court. If it was granted in the High Court, for example, there are other options which may, or may not be as effective as that afforded by the Maintenance Act 99 of 1998 which we deal with below. It all depends on the facts of the case. When it comes to the Maintenance Act, there are two routes. The one is the civil route, and the other, the criminal route. Let us next unpack the law.

Civil Route in the Maintenance Court

The Maintenance Act

Chapter 5 of the Maintenance Act 99 of 1998 deals with the civil execution of maintenance orders. We pasted sections 26 to 30 of the Act below for your convenience. You therefore do not have to search the web and read through endless documents and sections to get to the right place. It is all here. The sections are quite long but provides useful information for someone searching the web for answers. Below that, we provide the regulations. It is always advisable to read any Act with its accompanying regulations.

“26 Enforcement of maintenance or other orders

(1) Whenever any person-

(a) against whom any maintenance order has been made has failed to make any particular payment in accordance with that maintenance order; or

 (b) against whom any order for the payment of a specified sum of money has been made under section 16 (1) (a) (ii), 20 or 21 (4) has failed to make such a payment,

such order shall be enforceable in respect of any amount which that person has so failed to pay, together with any interest thereon-

(i) by execution against property as contemplated in section 27;

(ii) by the attachment of emoluments as contemplated in section 28; or

(iii) by the attachment of any debt as contemplated in section 30.

(2) (a) If any maintenance order or any order made under section 16 (1) (a) (ii), 20 or 21 (4) has remained unsatisfied for a period of ten days from the day on which the relevant amount became payable or any such order was made, as the case may be, the person in whose favour any such order was made may apply to the maintenance court where that person is resident-

(i) for the authorisation of the issue of a warrant of execution referred to in section 27 (1);

(ii) for an order for the attachment of emoluments referred to in section 28 (1); or

(iii) for an order for the attachment of any debt referred to in section 30 (1).

(b) The application shall be made in the prescribed manner and shall be accompanied by-

(i) a copy of the maintenance or other order in question; and

(ii) a statement under oath or affirmation setting forth the amount which the person against whom such order was made has failed to pay.

(3) A maintenance court shall not authorise the issue of a warrant of execution or make any order for the attachment of emoluments or any debt in order to satisfy a maintenance order-

(a) if the payment of maintenance in accordance with that maintenance order has been suspended by an appeal against the order under section 25; or

(b) if that maintenance court has made an order referred to in section 16 (2).

(4) Notwithstanding anything to the contrary contained in any law, any pension, annuity, gratuity or compassionate allowance or other similar benefit shall be liable to be attached or subjected to execution under any warrant of execution or any order issued or made under this Chapter in order to satisfy a maintenance order.

advice-child-maintenance-child-custody-divorce27 Warrants of execution

(1) The maintenance court may, on the application of a person referred to in section 26 (2) (a), authorise the issue of a warrant of execution against the movable property of the person against whom the maintenance or other order in question was made and, if the movable property is insufficient to satisfy such order, then against the immovable property of the latter person to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the execution.

(2) (a) A warrant of execution authorised under this section shall be-

(i) prepared in the prescribed manner by the person in whose favour the maintenance or other order in question was made;

(ii) issued in the prescribed manner by the clerk of the maintenance court; and

(iii) executed in the prescribed manner by the sheriff or maintenance investigator.

(b) The person in whose favour the maintenance or other order in question was made shall be assisted by the maintenance investigator or, in the absence of a maintenance investigator, by the maintenance officer in taking the prescribed steps to facilitate the execution of the warrant.

(3) A maintenance court may, on application in the prescribed manner by a person against whom a warrant of execution has been issued under this section, set aside the warrant of execution if the maintenance court is satisfied that he or she has complied with the maintenance or other order in question.

(4) A maintenance court may, on application in the prescribed manner by a person against whom a warrant of execution has been issued under this section-

(a) in summary manner enquire into the circumstances mentioned in subsection (5); and

(b) if the maintenance court so decides, suspend the warrant of execution and make an order-

(i) for the attachment of emoluments referred to in section 28 (1); or

(ii) for the attachment of any debt referred to in section 30 (1).

(5) At the enquiry the maintenance court shall take into consideration-

(a) the existing and prospective means of the person against whom the warrant of execution has been issued;

(b) the financial needs and obligations of, or in respect of, the person maintained by the person against whom the warrant of execution has been issued;

(c) the conduct of the person against whom the warrant of execution has been issued in so far as it may be relevant concerning his or her failure to satisfy the maintenance or other order in question; and

(d) the other circumstances which should, in the opinion of the court, be taken into consideration.

(6) (a) Any person who wishes to make an application under subsection (3) or (4) shall give notice in the prescribed manner of his or her intention to make the application to the person in whose favour the maintenance or other order in question was made, which notice shall be served at least 14 days before the day on which the application is to be heard.

advice-child-maintenance-child-custody-divorce(b) The maintenance court may call upon-

(i) the person who has made the application to adduce such evidence, either in writing or orally, in support of his or her application as the maintenance court may consider necessary; or

(ii) the person in whose favour the maintenance or other order in question was made to adduce such evidence, either in writing or orally, in rebuttal of the application as the maintenance court may consider necessary.

28 Attachment of emoluments

(1) A maintenance court may-

(a) on the application of a person referred in section 26 (2) (a); or

(b) when such court suspends the warrant of execution under section 27 (4) (b), make an order for the attachment of any emoluments at present or in future owing or accruing to the person against whom the maintenance or other order in question was made to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the attachment or execution, which order shall authorise any employer of the latter person to make on behalf of the latter person such payments as may be specified in the order from the emoluments of the latter person until such amount, interest and costs have been paid in full.

(2) (a) An order under this section may at any time, on good cause shown, be suspended, amended or rescinded by the maintenance court.

(b) Any person who wishes to make an application for the suspension, amendment or rescission of an order under this section shall give notice in the prescribed manner of his or her intention to make the application to the person in whose favour that order was made, which notice shall be served at least 14 days before the day on which the application is to be heard.

(c) The maintenance court may call upon-

(i) the person who has made the application to adduce such evidence, either in writing or orally, in support of his or her application as the maintenance court may consider necessary; or

(ii) the person in whose favour an order under this section was made to adduce such evidence, either in writing or orally, in rebuttal of the application as the maintenance court may consider necessary.

29 Notice relating to attachment of emoluments

(1) In order to give effect to an order for the attachment of emoluments referred to in section 28 (1), the maintenance officer shall, within seven days after the day on which such order was made by the maintenance court or whenever it is afterwards required, in the prescribed manner cause a notice, together with a copy of such order, to be served on the employer concerned directing that employer to make the payments specified in the notice at the times and in the manner so specified.

(2) Whenever any person to whom the notice relates leaves the service of the employer, that employer shall, within seven days after the day on which he or she so leaves the service, give notice thereof in the prescribed manner to the maintenance officer of the court where the order in question was made.

(3) Any employer on whom a notice has been served for the purposes of satisfying a maintenance order shall give priority to the payments specified in that notice over any order of court requiring payments to be made from the emoluments due to the person against whom that maintenance order was made.

(4) If any employer on whom a notice has been served for the purposes of satisfying a maintenance order has failed to make any particular payment in accordance with that notice, that maintenance order may be enforced against that employer in respect of any amount which that employer has so failed to pay, and the provisions of this Chapter shall, with the necessary changes, apply in respect of that employer, subject to that employer’s right or the right of the person against whom that maintenance order was made to dispute the validity of the order for the attachment of emoluments referred to in section 28 (1).

30 Attachment of debts

(1) A maintenance court may-

(a) on the application of a person referred to in section 26 (2) (a); or

(b) when such court suspends the warrant of execution under section 27 (4) (b),

make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance or other order in question was made to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the attachment or execution, which order shall direct the person who has incurred the obligation to pay the debt to make such payment as may be specified in that order within the time and in the manner so specified.

(2) (a) An order under this section may at any time, on good cause shown, be suspended, amended or rescinded by the maintenance court.

(b) Any person who wishes to make an application for the suspension, amendment or rescission of an order under this section shall give notice of his or her intention to make the application to the person in whose favour that order was made, which notice shall be served at least 14 days before the day on which the application is to be heard.

(c) The maintenance court may call upon-

(i) the person who has made the application to adduce such evidence, either in writing or orally, in support of his or her application as the maintenance court may consider necessary; or

(ii) the person in whose favour an order under this section was made to adduce such evidence, either in writing or orally, in rebuttal of the application as the maintenance court may consider necessary.

(3) An order made under subsection (1) may be enforced as if it were a civil judgment of the court.”

advice-child-maintenance-child-custody-divorce

The Regulations to the Maintenance Act

Chapter 3 of the Regulations to the Maintenance Act, deals with civil executions. Again, we provide it below.

“Application for enforcement of maintenance or other orders

  1. An application for –

(a) the authorisation of the issue of a warrant of execution;

(b) an order for the attachment of emoluments; or

(c) an order for the attachment of any debt,

contemplated in section 26(2)(a) of the Act, shall substantially correspond with Form K of

the Annexure.

Warrant of execution

  1. (1) A warrant of execution, contemplated in section 27 of the Act, shall –

(a) substantially correspond with Form L of the Annexure; and

(b) be prepared in triplicate.

(2) The person in whose favour the order was made shall prepare Part A of Form L of the

Annexure and thereafter lodge the said form with the clerk of the maintenance court

concerned.

(3) On receipt of the warrant of execution referred to in subregulation (2) the clerk of the

maintenance court shall issue the warrant of execution if he or she is satisfied that

(a) authorisation for the issuing of a warrant of execution was granted; and

(b) the warrant of execution has been properly prepared,

by preparing Part B of Form L of the Annexure.

(4) The clerk of the maintenance court shall after the warrant of execution has been issued

(a) return the original warrant of execution and one copy thereof to the person in

whose favour the order was made; and

(b) file the second copy of the warrant of execution in the relevant file.

(5) Any change on the warrant of execution shall be initialled by the clerk of the

maintenance court.

advice-child-maintenance-child-custody-divorce(6) The person authorised to execute a warrant of execution shall complete Part C and, if

applicable, Part D of Form L of the Annexure and return the form to the clerk of the

maintenance court.

Particulars of persons authorised to execute warrant of execution

  1. A maintenance investigator or maintenance officer shall submit to the person in whose

favour the order was made particulars of the person authorised to execute the warrant of

execution.

Application for the setting aside of a warrant of execution

  1. (1) An application for the setting aside of a warrant of execution by a person against

whom such warrant has been issued, contemplated in section 27(3) of the Act, shall

substantially correspond with Part A of Form M of the Annexure.

(2)(a) A notice of an application for the setting aside of a warrant of execution,

contemplated in section 27(6)(a) of the Act, shall substantially correspond with Part B of Form M of the Annexure.

(b) A person who applied for the setting aside of a warrant of execution shall submit the

notice referred to in paragraph (a) to the person in whose favour the warrant of execution was

issued in any manner convenient to him or her, subject thereto that the person who submits

the notice shall keep record of the manner in which the notice was submitted.

Attachment of emoluments

  1. (1) An application for the suspension, amendment or rescission of an order for the

attachment of emoluments, contemplated in section 28(2) (a) of the Act, shall substantially

correspond with Part A of Form N of the Annexure.

(2) (a) A notice of an application for the suspension, amendment or recission of an order

for the attachment of emoluments, contemplated in section 28(2)(b) of the Act, shall

substantially correspond with Part B of Form N of the Annexure.

(b) A person who applied for the suspension, amendment or recission of an order for the

attachment of emoluments shall submit the notice referred to in paragraph (a) to the person in

whose favour the order for the attachment of emoluments was made in any manner

convenient to him or her, subject thereto that the person who submits the notice shall keep

record of the manner in which the notice was submitted.

(3)(a) A notice, contemplated in section 29(1) of the Act, to an employer shall substantially

correspond with Part A of Form O of the Annexure.

(b) The service of a notice referred to in paragraph (a) shall be in accordance with the

provisions of regulation 26(1) or (2), as the case may be.

(c) The return of service of a notice referred to in paragraph (a), if the notice is served in

accordance with the provisions of regulation 26(1), shall substantially correspond with Part B

of Form O of the Annexure.

(4) (a) A notice, contemplated in section 29(2) of the Act, by the employer that the person

against whom the order for the attachment of emoluments was made has left his or her

service, shall substantially correspond with Part C of Form O of the Annexure.

(b) The notice referred to in paragraph (a) shall be submitted to the maintenance officer of

the court where the order was made in any manner convenient to him or her, subject thereto

that the person who submits the notice shall keep record of the manner in which the notice

was submitted.

Attachment of debts

  1. (1) An application for the suspension, amendment or rescission of an order for the

attachment of debts, contemplated in section 30(2) of the Act, shall substantially correspond

with Part A of Form P of the Annexure.

(2) (a) A notice of an application for the suspension, amendment or recission of an order

for the attachment of debts, contemplated in section 30(2) of the Act, shall substantially

correspond with Part B of Form P of the Annexure.

(b) A person who applied for the suspension, amendment or recission of an order for the

attachment of debts shall submit a notice referred to in paragraph (a) to the person in whose

favour the order for the attachment of debts was made in any manner convenient to him or

her, subject thereto that the person who submits the notice shall keep record of the manner in which the notice was submitted.

advice-child-maintenance-child-custody-divorceSummary on civil execution

From the above, it is clear that when it comes to the civil route, there are three (3) options to follow in order to obtain unpaid maintenance. They are:

(1) by execution against property;

(2) by the attachment of emoluments (Garnishee Order); and

(3) by the attachment of any debt.

How to you go about making use of the civil route?

The complainant must approach the maintenance court and make the necessary application. He or she would fill in a “Form K” which is headed “APPLICATION FOR ENFORCEMENT OF MAINTENANCE OR OTHER ORDER IN TERMS OF SECTION 26 OF THE MAINTENANCE ACT, 1998 (ACT No. 99 OF 1998)”.

On the application, you should write down all relevant information, including how the amount owed is calculated and the whereabouts of the defaulting party. It is advised that you go to court with proof that the monies were not paid. Therefore, if maintenance had to be paid into your bank account, take a printout of your bank statements with to show that monies were not paid. You must also state what relief you want as outlined above.

Once your application is in order, and by way of example you asked for attachment of emoluments, an order may be made against the defaulter’s employer to the effect that he or she makes payment directly to you by deducting it from the defaulting party’s salary. If the defaulter is unemployed and has property, then the route to follow is to ask for the execution of property. This means that the property would be sold and what is owing to you would be paid to you. Now let us move on to the criminal route.

Criminal procedure

It is a criminal offense not to adhere to a maintenance order. Furthermore, one can be convicted for that. You can be liable on conviction to a fine or to imprisonment for a period not exceeding one year or to such imprisonment without the option of a fine. This is serious. Now let us unpack the law.

The Maintenance Act 99 of 1998

Chapter 4 of the Maintenance Act deals with Offences and Orders relating to prosecutions when it comes to non-compliance with maintenance orders. We copied it below for your convenience.

“CHAPTER 6 OFFENCES AND PENALTIES (ss 31-39)

31 Offences relating to maintenance orders

(1) Subject to the provisions of subsection (2), any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years or to such imprisonment without the option of a fine.

(2) If the defence is raised in any prosecution for an offence under this section that any failure to pay maintenance in accordance with a maintenance order was due to lack of means on the part of the person charged, he or she shall not merely on the grounds of such defence be entitled to an acquittal if it is proved that the failure was due to his or her unwillingness to work or misconduct.

(3) If the name of a person stated in a maintenance order as the person against whom the maintenance order has been made corresponds substantially to the name of the particular person prosecuted for an offence under this section, any copy of the maintenance order certified as a true copy by a person who purports to be the registrar or clerk of the court or other officer having the custody of the records of the court in the Republic where the maintenance order was made, shall on its production be prima facie proof of the fact that the maintenance order was made against the person so prosecuted.

(4) If a person has been convicted of an offence under this section, the maintenance officer may, notwithstanding anything to the contrary contained in any law, furnish that person’s personal particulars to any business which has as its object the granting of credit or is involved in the credit rating of persons.

32 Offences relating to examination of persons by maintenance officer

(1) The provisions of sections 164 (2), 188 and 189 of the Criminal Procedure Act, 1977 (Act 51 of 1977), shall, with the necessary changes, apply in respect of a person required to appear before a magistrate under section 8, and the magistrate may, subject to subsection (2), exercise in respect of that person all the powers conferred by section 170 (2) of the said Act and the said section 189 on the court referred to in those sections.

(2) A person who is required to appear before a magistrate and who refuses or fails to furnish the information in question shall not be sentenced to imprisonment as contemplated in section 189 of the Criminal Procedure Act, 1977, unless the magistrate is also of the opinion that the furnishing of such information is necessary for the administration of justice.

 CHAPTER 7 ORDERS RELATING TO PROSECUTIONS (ss 40-41)

40 Recovery of arrear maintenance

(1) A court with civil jurisdiction convicting any person of an offence under section 31 (1) may, on the application of the public prosecutor and in addition to or in lieu of any penalty which the court may impose in respect of that offence, grant an order for the recovery from the convicted person of any amount he or she has failed to pay in accordance with the maintenance order, together with any interest thereon, whereupon the order so granted shall have the effect of a civil judgment of the court and shall, subject to subsection (2), be executed in the prescribed manner.

(2) A court granting an order against a convicted person may-

(a) in a summary manner enquire into the circumstances mentioned in subsection (3); and

(b) if the court so decides, authorise the issue of a warrant of execution against the movable or immovable property of the convicted person in order to satisfy such order.

(3) At the enquiry, the court shall take into consideration-

(a) the existing and prospective means of the convicted person;

(b) the financial needs and obligations of, or in respect of, the person maintained by the convicted person;

(c) the conduct of the convicted person in so far as it may be relevant concerning his or her failure to pay in accordance with the maintenance order; and

(d) the other circumstances which should, in the opinion of the court, be taken into consideration.

(4) Notwithstanding anything to the contrary contained in any law, any pension, annuity, gratuity or compassionate allowance or other similar benefit shall be liable to be attached or subjected to execution under an order granted under this section.

41 Conversion of criminal proceedings into maintenance enquiry

If during the course of any proceedings in a magistrate’s court in respect of-

(a) an offence referred to in section 31 (1); or

(b) the enforcement of any sentence suspended on condition that the convicted person make periodical payments of sums of money towards the maintenance of any other person,

it appears to the court that it is desirable that a maintenance enquiry be held, or when the public prosecutor so requests, the court shall convert the proceedings into such enquiry.”

Now let us move on to the regulations

advice-child-maintenance-child-custody-divorceRegulations to the Maintenance Act dealing with the Criminal Route

“OFFENCES AND ORDERS RELATING TO PROSECUTIONS

Complaints of failure to comply with orders

  1. A complaint regarding a failure to make a payment in accordance with a maintenance

order shall substantially correspond with Form Q of the Annexure.

Recovery of arrear maintenance

  1. (1) The clerk of the court shall submit a certified copy of an order made by the court in

terms of section 40 of the Act to the clerk of the civil court for registration of such order.

(2) The clerk of the civil court shall –

(a) register the order referred to in subregulation (1) by numbering it with the

following consecutive case number for the year during which it is registered;

and

(b) inform the maintenance officer of the maintenance court where the

maintenance order was made and the person in whose favour the order was

made of the registration and the number of the case.

(3) The provisions of the Act relating to civil execution shall, with the necessary changes,

apply in respect of the execution of an order referred to in subregulation (1).”

Summary of the Criminal Route

advice-child-maintenance-child-custody-divorceShould the person against whom a maintenance order was made, not comply with it, the party who should receive maintenance may approach the maintenance court and lay a criminal complaint. The complainant would fill in a “Form Q” headed “COMPLAINT OF FAILURE TO COMPLY WITH A MAINTENANCE ORDER FOR PURPOSES OF SECTION 31(1) OF THE MAINTENANCE ACT, 1998 (ACT No. 99 OF 1998)”. On the form, you should state how the defaulter failed to comply with the order and also what amount is outstanding.

Once you successfully laid your complaint, the maintenance court would subpoena the defaulter to the criminal courts. The defaulter has the right to legal representation prior to a trial date being arranged. Once a date has been arranged for trial you would be subpoenaed as a witness and give evidence as to the maintenance order, the outstanding amount that the defaulter failed to pay and anything else that is relevant.

As the proceedings are criminal, the State would prosecute the defaulter and you would be their witness. Therefore, the public prosecutor would ask you questions and then the defaulter or his attorney or advocate will cross-examine you. If a foundation has been laid by the State, then the defaulter would get a chance to outline his defense to the court and the public prosecutor would then cross-examine him or her.

Should the court find the defaulter guilty, then on the request of the “public prosecutor and in addition to or in lieu of any penalty which the court may have imposed grant an order for the recovery from the convicted person of any amount he or she has failed to pay in accordance with the maintenance order together with any interest thereon. Whereupon the order so granted shall have the effect of a civil judgment of the court…” This means that the order may be used to sell the convicted person’s property.

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31 comments so far

ValenciaPosted on9:30 pm - Oct 14, 2017

Hello,my name is Valencia Wagner.I have a 1year old son,his father doesn’t want to pay maintenance. I’ve been pleading him to help me, but he wants nothing to do with our son.will you be able to help me.0787000045.

Jessica Da CostaPosted on9:50 pm - Mar 1, 2018

Hi, i have been battling with my ex-girlfriend in maintenance court, she has a lawyer and I do not and I was forced in to signing an interim maintenance order to pay monies I cannot afford, they have now said they are sending a warrant of execution. I do not know what to do. I cant afford what they have asked for i already pay our childs full school fees as agreed but now i am being requested to pay an extra R2000.00 that i really dont have the lawyer and judge told me i should default on my bank loan because then i will be able to afford it. I cant afford a lawyer and i have drawn up expenses with all the proof of what i have to pay and what i earn but the judge didnt even let me show it . Please assist.

sibulelePosted on1:45 pm - Mar 12, 2018

Good Day. Is it possible to recover all costs incurred against the father of a child, once he gets a Job?

ElmariePosted on12:56 pm - Mar 19, 2018

Good day, I have a garnishee order against my ex with his previous boss. They still owe him money on his last salary not willing to pay unless he takes a polygraph test. Now he cant pay me maintenance as he was hoping for that money. May I claim for maintenance on the last salary as he gave me permission to do so?

erashneePosted on11:20 am - Mar 23, 2018

Hi I got an order against my husband , but he didnt pay from jan -18 apparently he is not working but i Know he does private jobs here and there and they pay him cash , in the order he was liable to pay for the school fees which now is in arrears , he has a vehicle which we bought in feb 2017 i have the vehicle and i am paying the monthly installments in order to transport the kids , and he has another vehicle with him which he owes 8000.00 to the bank , what can be done so i receive the monies for the 3 kids in my care

AnnePosted on1:10 pm - Jun 18, 2018

Hi Please let me know if section 31 of the Maintenance Act can be evoked against a party defaulting on an INTERIM order, not a final order. Thank you

arnoldPosted on12:03 pm - Jul 13, 2018

is spousal arrear maintenance part of our common law?

LisaPosted on9:06 am - Aug 17, 2018

Hi. The court has issued a warrant of execution on my son’s dad’s car to recover the arrears on maintenance. I would like to know is it possible for the Sherrif to give me the car as I don’t have one or does it have to be auctioned off? If it has to be auctioned will I be able to claim the monies back fron the amount received for the car that I had to pay for the removal of the vehicle?
Thank you

    Our LawyerPosted on7:17 am - Aug 20, 2018

    Good day
    The car would have to be auctioned. You would have to confirm with the maintenance court regarding claiming back the latter costs.

CharmainePosted on12:49 pm - Aug 27, 2018

Hi
My ex doesn’t pay maintenance, because he lost his job back in 2016 Oct, i have been to court and the magistrate investigator was able to find some money in his account to pay the arrears maintenance but because i don’t have a address for him they cant summons him i was able to get a cell number for him and i did submit this to the court but to-date nothing has developed. any advice for me?

    Our LawyerPosted on2:58 pm - Aug 27, 2018

    Good day. The maintenance court should have the resources to find him. But if they do not, then we advise you employ the services of your own private investigator.

AnonPosted on9:37 am - Sep 7, 2018

Morning, is it possible to have a warrant of execution issued as well as start the criminal procedure at the same time against a maintenance defaulter? Is a maintenance officer allowed to delay the process of the warrant of execution by first doing an inquiry into the defaulters affairs?

AnonymousPosted on10:30 pm - Sep 26, 2018

Good day

I made an maintenance application in 2011 for my two sons, in 2012 the magistrate at the maintenance court granted an attachment order against my ex-husbands pension fund for arrears and future maintenance. Since 2012 I have not received any payment from the pension fund and the maintenance court has failed to enforce the court order as the pension fund is non-compliant for 6years, can I claim for the interest that has accumulated on this money for the past six years and how would I go about this. I am struggling and has sent numerous emails to the Pension fund. I have approached the maintence court and was advised that there is nothing they can do as they have done everything there is to do, which I doubt as they have done nothing to enforce the maintenance order, neither did they subpoena the Pension fund to get answers to their non-compliance to the maintenance order. Please help

NicolenePosted on7:26 am - Oct 17, 2018

Good day,

Can you perhaps assist me? My husband needs to go to the maintenance court cause his ex want more maintenance than what he is currently paying – there is no agreement between them and they were not married at all. What will the maintenance court require from him? He wants to proof to them that he cannot afford more than he is currently paying.

Also can he represent himself or do you rather suggest that he gets an lawyer? Unfortunately we cannot afford one therefore we want to know if he can represent himself..

Regards
Nicolene

    Our LawyerPosted on7:48 am - Oct 17, 2018

    Good day Nicolene

    There is no need to have a lawyer. But having one would be preferable if you can afford one. He would need to take to court all proof of income and expenses and show the court what he can afford.

NicolenePosted on4:12 pm - Oct 25, 2018

Good day,

Me again, may I please ask one more question?

My husband’s ex wants him to contribute to clothing, shoes etc for summer and winter. My husband agreed to this and said that he will get him winter and summer clothing for his birthday (which is in winter month) and for Christmas (which is in summer). According to the lawyer now, this is not acceptable as this is seen as a gift / present and cannot see as been contributed towards their request of contributing for clothing etc in summer and winter.

Why can this not be seen as the contribution, though it is for his birthday and Christmas?

Hope to hear from you soon!

Thank you.

Regards
Nicolene

    Our LawyerPosted on6:32 pm - Oct 25, 2018

    Good day

    If the child requires clothing for the year, and it is provided by the father and referred to as a gift, it is seen as a contribution. The mother would therefore not incur clothing expenses.

SarahPosted on8:40 pm - Nov 4, 2018

Good day,

I need some advice on the following, please.

I have submitted an application for Enforcement of maintenance or other orders + Warrant of execution several months ago, I was informed by the clerk of the civil court that he cannot handle the matter because the case is currently being handled by the criminal court. However, almost two years into applying for arrears, myself and the defendant has had two consultations only. The first consult ending in the defendant being asked to present a 3-month bank statement at the next consult, the second consult resulted in the prosecutor requesting that the defendant pay less than half of the original and only court order in place until further notice.

The matter is now going to trial (no date has been set) but the defendant and only the defendant has been told to meet with the prosecutor on a specified date.

I have concerns that the matter is not being dealt with by the courts correctly and I am struggling to find out how to best proceed.

(Note: Defendant has refused legal representation. Legal aid has informed me that they cannot represent me because the defendant does not have representation and I can not afford a private lawyer)

Many thanks

    Our LawyerPosted on6:07 am - Nov 5, 2018

    Good day
    If you are feeling that the Prosecutor is acting improper, then you need to lay a complaint to someone higher than him. It is indeed sad that these matters take so long to resolve.

Thami MdwabaPosted on4:07 pm - Dec 11, 2018

Good day. I have a maintenance court order issued against me in 2017 for R1000/month. I have been paying the monthly payments using ewallet into my ex’s account. September 2017 I lost my job and tried different avenues for obtaining a job but that did not work out. I managed to get a job in may 2018 and kept on paying the monthly payments and additional monies she requested using ewallet. The company went bankrupt in September this year. I haven’t found a job yet. I received money from UIF this month and I couldn’t access my account as it was from due to a court order. I did not receive notification of the court order from the bank or anyone. How do I resolve this.

Thami mdwabaPosted on8:57 pm - Dec 12, 2018

Please advise if I can approach any maintenance court for the reduction or I should go to the original court in Pinetown. Reason is that I do not have funds to travel to that specific court.

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