A major concern many parents have revolves around the existence of maintenance order from a South African court which requires enforcement against a non-compliant person who resides in a foreign country. To obtain maintenance for minor children in any foreign country it is advisable that an order for the maintenance of the minor children has first been made by a South African court.
Basically, there are 2 (two) options open to parents who seek the enforcement of maintenance outside the Republic. The purpose of this article is to basically summarize those options.
Many people, including attorneys, are unaware of the first option available, even though it has existed in South African law since 1965. The Reciprocal Enforcement of Maintenance Orders act regulates foreign maintenance processes and allows South African citizens to claim maintenance from a parent living in a foreign country.
However, the use of the provisions Reciprocal Enforcement of Maintenance Orders Act is not available in all circumstances, and will only find application in respect of foreign countries with which the Republic of South Africa has concluded reciprocal enforcement agreements with. As at August 2013 the countries which the Republic has concluded such agreements with are:
- Cocoa (Keely Islands)
- Hong Kong
- Isle of Man
- New Zealand
- Norfolk Island
- St Helena
- The United Kingdom
- The United States of America – Restricted to the State California
If the foreign country in question does not have a reciprocal enforcement agreement with the Republic, the second option is to launch formal proceedings in the courts of the foreign country based on an already existing maintenance order. This option in most cases, tends to be an expensive process, takes an indeterminable amount of time and doesn’t always render favourable results.
While the legislature has done and continues to do much to ensure that maintenance is easily enforceable in respect of minor children, it falls to the parents or caregivers of the minor child to ensure that the necessary maintenance orders are sought to protect the best interest of the child. In the absence of such orders it is usually impossible to enforce any kind of compliance with the obligation of a parent to maintain their child.