May 31, 2018

Where to turn when your child’s maintenance isn’t being paid

In South Africa, there are many single parents who are struggling to make ends meet while the other parent does not commit to supporting their child/ren.

Chapter 2 section 28 of the Constitution specifically talks to Children rights.  The Children’s Act states that: “In all matters concerning the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance, must be applied”.

There are many reasons why a parent may default on his/her obligation to pay a maintenance order. Whatever the reason, however, it is a criminal offence and the parent is liable to a fine or imprisonment if they are convicted.

The Maintenance Act provides protection against non-payment of maintenance and support. A new amendment to the Maintenance Act, which came into effect on 5 January, allows the Department of Justice to trace maintenance defaulters through their cellular phone service providers and blacklist them with the credit bureaus.

What should you do in this instance to get a defaulting parent to pay?

The steps below help parents granted a maintenance order to recover outstanding funds from the other parent:

  1. You may choose to represent yourself or use an attorney in executing a complaint in the maintenance court.
  2. You must ensure that you have the following documents available to take to the maintenance court:
    1. A certified copy of your identity document
    2. A certified copy of your child/ren’s birth certificate or ID if they are above the age of 16, but below the age of 18.
    3. Proof of residential address
    4. Proof of non-payment (Bank statements for the months owing)
    5. Medical aid statements (is applicable)
    6. School fees statements
    7. Extra mural activities statements
    8. Certified copies of Divorce Order
    9. Certified copies of Settlement Agreement
    10. Affidavit (explaining why you are lodging the claim)
  3. An 18-year-old child may apply on their own to the maintenance court for support.
  4. After the courts have considered all the facts, the maintenance court will make such order as it deems fit. This may include granting a garnishee order requiring the defaulter’s employer to deduct the maintenance amount from the defaulter’s salary and paid to you.

You may also apply for the authorisation of a Warrant of Execution to attach goods or for an order for the attachment of emoluments or for an order for the attachment of a debt.

Ruth Crisp
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