ChildrenDivorceMaintainance

What you can do to enforce maintenance orders

By 14/09/2018 No Comments
Man opening legal document

One of the ills plaguing our society is the failure by many people to pay maintenance in accordance with maintenance orders granted by our courts. In many instances people lose faith in the court systems, usually after having had a difficult road to obtain the maintenance order in the first place, because they are unaware of the ways in which maintenance orders can be enforced.

The Maintenance Act provides that maintenance orders can be enforced in the following ways when a person fails to comply with the terms of the orders: 

  1. WARRANTS OF EXECUTION:

A person in whose favour a maintenance order has been granted can approach a maintenance court and apply for a warrant of execution to be issued against the movable property of the person against whom the order was made.

Once a warrant of execution has been issued, it must be taken to sheriff of the court to be executed.

If it is discovered that a person’s movable property is insufficient to satisfy the amounts owed, the person in whose favour an order was granted can return to the maintenance court and apply for a warrant of execution to be issued against immovable property. 

  1. EMOLUMENTS ATTACHMENT ORDERS:

 A person in whose favour of maintenance order has been granted can approach the maintenance court and apply to have the emoluments of the person against whom the order was granted attached.

An emolument is any salary, fee, profit and / or income received as a result of employment and the court is empowered to attach any emolument at present or in future that is owing or accruing to the person against whom the maintenance order was granted.

For these orders to be affected the maintenance officer will serve the order on the employer of the person whom the order was granted against.

After receiving service of an emoluments attachment order, an employer is required to comply with the order and pay the amounts referred to in the order prior to paying a salary over to the person against whom the order was granted.

These orders have commonly become known as Garnishee orders.

In the event that the person again whom the order is granted leaves the employment of the employer who received service of the order, the employer must notify the maintenance officer in writing within seven days. 

  1. ATTACHMENT OF DEBTS:

A person in whose favour a maintenance order has been granted can approach the maintenance court and apply for any debts owed to the person against whom the order is granted to be attached.

A debt in this regard would be any debt which is presently owed or will accrue and/ or be owed in future to the person against whom an order is made.

An order granted in this regard is capable of being enforced as if it was a civil judgement of the court.

  1. BLACKLISTING:

As of 1 January 2018 a person in whose favour a maintenance order has been granted also has an additional option to report any failure to pay maintenance to a credit bureau, credit provider and/ or business involved in granting credit or in the credit rating of persons.

This in effect will blacklist a person against whom an order was granted and would damage their credit ratings and / or prevent them being granted further credit.

  1. CRIMINAL CHARGES:

Where a person has not complied with the terms of a maintenance order and it is clear that they had the means to do so, a person in whose favour the maintenance order was been granted can approach the maintenance court and submit a criminal complaint of a failure to pay maintenance.

If such a complaint is submitted to the maintenance court, a state prosecutor will issue a criminal summons and pursue criminal charges against a defaulting party.

If convicted the maintenance court may direct the defaulting party to serve a prison sentence of up to 3 (three) years.

From the above it is clear that there are various options available to enforce maintenance orders.

Nuno Palmeira

 

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.