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Legal Options for Enforcing Child Maintenance Payments

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Legal Options for Enforcing Child Maintenance Payments

Legal Options for Enforcing Child Maintenance Payments

Child Maintenance is a legal requirement In South Africa.

This is to ensure that children get financial support from both parents, even if the parents are no longer married.

Legal Options for Enforcing Child Maintenance Payments

South Africa has four primary legal methods for enforcing child maintenance payments. These include obtaining an execution warrant, a garnishee order, a debt attachment order, and, as a last resort, pursuing criminal prosecution against the nonpaying individual.

What is Child Maintenance?

Child maintenance is the financial support paid by a parent for the care and well-being of their child or children in South Africa. Child maintenance covers food, clothing, education, and medical expenses.

Child support is meant to ensure that children receive financial support from both parents, even if the parents are no longer married.

A Court ruling or a maintenance agreement between the parents usually determines the amount of child maintenance that should be paid.

However,  the required amount of child support is not paid in many circumstances, causing financial difficulty and stress for the affected parties.

Defaulters (or Nonpayers) in Child Maintenance: Legal Options for Enforcement

In South Africa, unpaid child maintenance can cause financial difficulties for custodial parents and children.

Child support is a vital component of parenting. It is necessary for children’s and custodial parents’ well-being and financial stability.

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Legal Options for Enforcing Child Maintenance Payment

  • Obtaining an execution warrant
  • A garnishee order
  • A debt attachment order.

If the above fails,

Criminal Prosecution for the Failure to Make Payment According to Maintenance Order.

These legal remedies can help ensure that child support is paid and that children’s and custodial parents’ financial requirements are satisfied.

The best way to collect child maintenance debt depends on the specific circumstances of your case and the financial resources of the person who owes the debt.

In general, it is best to try to negotiate a payment plan or settlement with the debtor before resorting to legal action. If that is not possible, you must decide which option will be best suited for your purposes.

Some courts require that you notify the other Party when you approach the Court to take action against the defaulter. In terms of the Act, it is not necessary.

Why Child Support Matters: The Benefits of Timely Payments

Child maintenance is a regular payment paid by a parent to support their children financially.

It is usually paid after the parents have separated, and one parent has primary residence of the children. It is critical to ensure that child support is paid for various reasons.

Child maintenance is, first, meant to support meeting the children’s financial needs and their custodial parent.

This can involve paying for accommodation, food, clothing, medical care, education, etc.

When child support is not paid, the custodial parent and children may struggle to make ends meet.

This may force the government to help them, or they may require other forms of assistance.

In addition to economic difficulties, paying child maintenance entails legal and moral obligations.

Parents have a legal obligation to support their children financially. Failure to do so can result in legal ramifications such as fines or even jail.

Furthermore, children have a right to financial support from both parents and making sure that child maintenance is paid contributes to this entitlement.

Child support is essential because it helps pay for what children need and is also the right thing to do.

Statistics on the Number of Child Maintenance Defaulters

Unfortunately, many parents in South Africa fail to satisfy their Court-ordered child support responsibilities. These people are known as child maintenance defaulters, and they leave their children and custodial parents scrambling to make ends meet. 

According to the Department of Justice and Constitutional Development, 137,000 child maintenance cases were outstanding in the Courts as of 2020.

Many people feel that the Maintenance Court fails in its duty.

The Mail & Guardian Newspaper had an article called “Maintenance courts fail SA’s Children” in their publication, and in this article, they stated that the “System is in disarray.” 

What, however, causes a parent to default?

It could be because of financial difficulties, a desire to punish the other parent or a misunderstanding of their legal responsibilities.

Whatever the cause, the repercussions can be severe.

If someone doesn’t pay their child support on time, the parent who is supposed to receive the money may have to go to Court to get it. The Court may make the person who didn’t pay give a big payment all at once pay a fine or even go to jail.

Child maintenance defaulters are a significant issue in South Africa, affecting their children’s and custodial parents’ financial stability and well-being.

Parents must fulfil their commitments and provide financial assistance for their children.

The Consequences for Children and Custodial Parents.

Unfortunately, many parents in South Africa fail to satisfy their Court-ordered child support responsibilities. 

Child Support spelled out

Legal Options for Enforcing Child Support Payment

Execution Warrant

A warrant of execution is a court order that allows someone who is owed child maintenance (the creditor) to take away the things someone owns (the debtor’s assets) to pay off the child maintenance debt.

To get an execution warrant, the creditor must first secure a Court ruling establishing that the debtor owes the debt.

The creditor can then petition to the Court for an execution warrant, giving a copy of the judgment as well as the amount owed, and any interest that has accrued.

If the Court grants the application, it will issue a warrant of execution, which a sheriff will serve on the debtor.

The warrant of execution gives the sheriff the power to take away things the debtor owns, like money in the bank, wages, or personal belongings, and sell them at an auction to pay for the unpaid child support.

Garnishee Order (Order for Attachment of Emoluments)

An order of the garnishee is a legal way for someone who is owed child maintenance (the creditor) to take a portion of the debtor’s wages or other income to pay for child maintenance.

This order is typically used when the debtor didn’t pay the child maintenance that a court judgment has legally established.

To obtain a garnishee order, the creditor must first file a request with the Court and provide evidence of the child maintenance owed by the debtor.

If the Court grants the request, the garnishee order will be issued and served on the debtor’s employer or other sources of income, such as a pension fund.

The employer or other source of income must then withhold a portion of the debtor’s salary or other income and pay it to the creditor until the child maintenance debt is fully satisfied.

Garnishee orders are most commonly used in cases involving unpaid child maintenance.

It is important to note that garnishee orders can significantly impact the debtor’s financial situation, as they may result in a reduction in income and an inability to pay other bills or expenses.

Order for Debt Attachment

An attachment of a debt order is a court order that lets someone who is owed money (the creditor) take a debt that is owed to the debtor by someone else (a third party) to pay off the debt.

To get an order for debt attachment, the creditor must first acquire a Court decision stating that the debtor owes the obligation.

The creditor can petition the Court for a debt attachment order, which they can then serve on the Third Party.

The Third Party must then pay the debtor’s debt to the creditor until the creditor’s debt is settled.

Criminal Prosecution in terms of  Section 31 of the Maintenance Act 99 of 1998

Section 31 Criminal Prosecution

Section 31 Criminal Prosecution

 In South Africa, it is against the law to not pay child support according to a court order. This is stated in Section 31(1) of the Maintenance Act 99 of 1998.

There is a defence available, under Section 31(2), for those who can prove that their failure to pay was due to a lack of means.

This defence will not be successful if the prosecution can prove that the failure to pay was due to the accused’s “unwillingness to work or misconduct.”

The National Prosecuting Authority (NPA) in South Africa has, in some cases, required that there be evidence that the defaulting Party had the means to comply with the maintenance order at the time of the default to institute a prosecution under Section 31(1).

However, this requirement is not explicitly stated in the Maintenance Act and may conflict with Section 31(2) provisions.

If the NPA decides that there is insufficient evidence to prove that the accused had the means to follow the order, it may decline to prosecute the matter.

This can leave the complainant without any further recourse, as the defaulting respondent may then be able to apply to have the maintenance order varied or set aside.

Is it possible to cancel a warrant of execution once it has been granted?

Yes, the person who is required to pay child support (the respondent) can apply to the maintenance court to have the warrant of execution set aside or suspended.

They must inform the person who is receiving child support (the complainant) of their intention to do so at least 14 days before the application is heard.

The Court may ask either or both parties to provide evidence, either orally or in writing, at the hearing of the application.

Suppose the Court decides to suspend the warrant of execution. In that case, they may also order the attachment of emoluments (income or salary) or the attachment of debt to ensure that child support payments are made.

In Summary

A warrant of execution, a garnishee order, and an order for attachment of debt are legal remedies that can be used to enforce child maintenance payments when the defaulter fails to meet their financial commitments.

In conclusion, if you are having difficulty collecting child maintenance from your ex, you may be able to seek relief from the courts.

Several legal options are available, such as obtaining an execution warrant, a garnishee order, or a debt attachment order.

These legal remedies can help you recover the money that is owed to you.

If you struggle to collect child maintenance from your ex, don’t hesitate to seek help.

At Martin Vermaak Attorneys, we are here to support you and advocate for your rights.

Our team of experienced attorneys is ready to guide you through the legal process and work towards a fair and satisfactory resolution for you.

Don’t let maintenance default ruin your financial stability and well-being.

Contact us today to learn more about how we can help you take action to get the support you are entitled to.

 

Read more about:

How to calculate Child Maintenance?

The Divorce Process in South Africa

How to Divorce a Missing Spouse?

 

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