Pay your maintenance or you will be blacklisted – but, will this solve the problem?

2014-08-07 11:29

The National Credit Regulator gazetted last week new affordability guidelines for the credit industry aimed at bringing child maintenance defaulters to book. The draft regulations were hailed by some political parties as "real progress" towards making the estimated millions of such parents, mainly fathers, face up to their responsibilities. All good and well from a politicians’ point of view, but then how will a father who is in arrears with his maintenance obligations then be able to obtain credit to pay the arrears? To increase the pressure on parents to fulfill their financial responsibilities to their children is a great idea, but in South Africa we have unique problems.

A while ago practitioners within the legal fraternity such as attorneys, advocates and prosecutors have identified the following factors as causes for unacceptable backlogs:

- Court rolls (Regional and District Courts) that are supposed to start at 09h00 in the morning but only start as late as 12h00 or thereafter;

- Magistrates arriving for work only at 12h00 or thereafter;

- Instances where presiding officers take or are granted inordinate periods of leave of absence during court proceedings or running trials;

- Under-staffing of courts especially magistrates, prosecutors and interpreters;

- A severe shortage of adequate courtrooms and/or buildings;

- Poor case management and case-flow management and

- Tampering with, or loss of, case records;

- Mismanagement of the salaries of legal professionals within the department.

The fact is that our Maintenance Courts are not functioning properly, and many parents and children do not get justice in the family courts. Maintenance courts are currently log-jammed, and the NGOs helping with maintenance cases cannot keep up with the daily volumes. I have consulted with so many mothers who point to the failures of our maintenance system as the sole cause why defaulters are not brought to book, the system is failing us they say.

In South Africa there have been challenges in implementing our maintenance law and holding fathers accountable.

The draft regulations of National Credit Regulator now provide that:

- Maintenance defaults will stay on a person's credit record for 5 years, or until the court rescinds the default judgment, whichever occurs sooner. [Section 17(1)(8)];

- Maintenance payments will be included in ALL affordability assessments completed when applying for new loans. [23(A)(10)(c)]; and

- Clients are required to declare if they have any maintenance default judgments [Section 3.7 of the new prescribed form].

This is significant because it means that maintenance defaulters will now have their credit records impaired, for the first time. The Department of Justice has already drafted a Bill to amend the Maintenance Act to make this a reality. This Bill also has a mechanism by enlisting the assistance of credit bureau in tracking down defaulters who can't be found.

But the real problems are:

South Africa has an extremely high number of “absent fathers” with roughly half of the children in the country living without daily contact with their fathers. Absent fathers refers to fathers that do not live with their children, do not maintain communication and do not pay maintenance.

This situation presents both social and developmental challenges. One father out of two is absent from his child’s life in South Africa. According to a report published by the South African Institute of Race Relations during 2011, an estimated 9 million children are growing up in South Africa without fathers.

Recent data suggest that there has been an increase in the number of absent fathers from the end of apartheid to the present day. The percentage of African children under the age of 15 years with absent living fathers increased from 45% to 52% between 1996 and 2009. There has also been an increase for coloured children (from 34% to 41%), and for White children (from 13% to 15%). The proportion of children with absent living fathers decreased only among Indians (from 17% to 12%).

Although, the presence of a father in a child’s life does not automatically lead to positive outcomes, research has shown that usually father absence is connected with negative outcomes for children and women. Studies in the United States have shown that paternal abandonment or neglect can result in poor educational performance and school drop-out.

Fathers and mothers who are able to pay maintenance and default on these payments should be held accountable but we also need to look at our relationships because there is a definite effect which dysfunctional and conflict-ridden relationships have on a father’s ability to be present in his child’s life. It is true that some fathers do not have sufficient contact with their children due to a lack of effective conflict management and resolution mechanisms.

It is sad because children become both the victims and the weapons. It happens often that a mother will exclude a father as a way of punishing or manipulating the father and many fathers experience this process of marginalization. Sometimes this result in some fathers expressing their frustration with such a situation through engaging in desperate and destructive actions.

Men should rather be encouraged to act as role models in their communities, to speak out against: child neglect and men who default on maintenance payments even though they are able to contribute, and other behaviour patterns which exert negative effects on families and the media should be utilised to highlight men who can be seen as positive role models in their communities.

To blacklist maintenance defaulters may be a novel idea, but this will not solve the unique problems we face in South Africa, to blacklist almost sound like the outcry to bring the death penalty back.

Family Law and Divorce Attorney and author of Everyone’s Guide to Divorce and Separation – Random House.

Twitter: bertuspreller

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