What happens if a parent stops paying their maintenance order?


Many parents rely on maintenance money from their child's other parent to cover the day to day living expenses of their children, but what happens when a parent defaults on the payments? 

Follow the #maintenancematters series here 

Alexandra Shardlow of Di Siena Attorneys says the South African Courts take an extremely dim view of parents who fail to make payment of maintenance, and default in respect of maintenance orders.

She explained to Parent24 that if a parent against whom an maintenance order has been granted ceases paying maintenance and fails to comply with the terms of a maintenance order, the parent in whose favour the order has been granted may apply to a maintenance court for: 

  •  Authorisation to issue a warrant of execution;
  • The attachment of emoluments or a garnishee order;
  • An order for the attachment of a debt

Warrant of execution

Shardlow says a warrant of execution empowers a sheriff of the court to attend the premises of the person who has defaulted in respect of the maintenance order (the maintenance defaulter), and attach and remove goods to a value equivalent to the outstanding debt. These goods can be placed on auction for sale.

The warrant of execution will first be issued against the defaulter’s movable property and to the extent that same is insufficient to satisfy the outstanding debt, she says, it will be issued against their immovable property, as well as incorporeal property such as policies, bank accounts and investments.

Should the goods sold in execution in terms of the warrant of execution be insufficient to satisfy a debt, a party in whose favour a maintenance order has been granted may make application for a garnishee order against the defaulter’s salary. 

Garnishee order

The result of a garnishee order will be that the garnishee is ordered as against the defaulter’s employer, Shardlow explains, and the defaulter’s employer will be ordered to discharge the defaulter’s indebtedness on a monthly basis.

This is by means of paying over a stipulated amount in satisfaction of the outstanding debt to the complainant’s from the defaulter’s salary and the defaulter shall only receive the balance of his salary once that amount has been paid to the other parent.

It must be noted that failure to pay maintenance in accordance with a maintenance order is a criminal offence, she says. 

If it can be shown that the defaulter is in "wilful default" the complainant may approach a court stating that the defaulter is in contempt of the court order and the defaulter may be liable to a fine and/or criminal sanctions inclusive of imprisonment.

Maintenance dodgers

It's no secret that some parents dodge their obligations, but it's important to know that the law protects kids first and foremost.

Parent's who have been left high and dry must be sure to follow up at the courts and not give up. 

For more on how contentious maintenance issues can become, read: Maintenance money: to some, more divisive than divorce

    Follow the #maintenancematters series here

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