My child's father is threatening to leave the country and not pay maintenance: what are my legal options?

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My child's father is threatening to leave the country and not pay maintenance (Photo by yousef alfuhigi on Unsplash)
My child's father is threatening to leave the country and not pay maintenance (Photo by yousef alfuhigi on Unsplash)

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 our #maintenancematters series here 

This parent sent us a concerning question, so we immediately reached out to our legal experts for advice. 

Good day,
I would like to know if someone can tell me about their experience when a father threatens to leave the country and not pay his child maintenance.
Please advise?
Thank you

Help is at hand from the professionals at LAW FOR ALL and Fairdivorce.co.za

Raising a child is probably one of life's greatest joys and privileges, and one of the most significant responsibilities a parent can have. Aside from investing a lot of time and emotion into providing the best upbringing for your child, it also requires financial support. 

Sinta Ebersohn, founder of fairdivorce.co.za, also told us that if a parenting plan exists and maintenance is already being paid, it is possible to enforce it in some countries outside of South Africa, due to reciprocal enforcement agreements we have with several countries.

"If there is no agreement in place and maintenance is not being paid, the best would be to consult a mediator urgently, who can assist with getting a proper parenting plan / maintenance agreement in place," she says. 

Severe punishment and consequences

Nomzamo Sinaze, lawyer at LAW FOR ALL explains that if a court has issued an order for maintenance payments, then it's best to inform the child’s non-custodial parent, in this case the father, that leaving the country to avoid paying maintenance is against the law.

Plus, he could face severe punishment and consequences.

The Maintenance Court Act 99 of 1998 clearly states, "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 one year or to such imprisonment without the option of a fine". 

However, the consequences for skipping maintenance payments don’t stop there.

Could result in the defaulter being blacklisted

According to Sinaze "the law allows a maintenance officer to forward the defaulter’s personal details to any business that gives credit or is responsible for someone's credit rating, which could result in the defaulter being blacklisted".

"Many maintenance dodgers might not know this since the amendments to the Maintenance Amendment Act were only signed into law in 2018," she adds. 

If the non-custodial parent has already left the country, you can still take legal action against him, she says, explaining that a parent being in a foreign country does not mean they can get away with not complying to the child maintenance laws of South Africa.

In such a situation, you would have to approach the High Court for an application known as an Edictal Citation, and then a summons or notice to appear in court must be served on the father. This can still be done even though he is in a foreign country.

You will have to show that you have tried everything to serve the documents on the other defaulting parent, and there is no other way aside from the Edictal Citation. 

The law is on the side of the child

"The mother would have to provide the details of the sheriff in the foreign country that will affect service on the father. Then, a sworn translation of the documents (in the official language of the country the father is in) along with the original documents will be delivered to the Director-General of Foreign Affairs by the Registrar of the Court. The father will have 30 days in which to respond officially to the documents served on him," explains Sinaze.

Either way, the father shouldn’t think that it is just as simple as leaving the country to avoid paying maintenance; the law is on the side of the child and the custodial parent and does not take defaulting on maintenance payments lightly.

As always, it is best to have a chat with a legal expert, to ensure that you are aware of all your options and able to make the best decision for you and your child. 

Visit the Department of Justice and Constitutional Development here for more information on international maintenance

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Follow our #maintenancematters series here

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