A Practical Guide to Enforcing Child Maintenance Orders in South Africa

Securing child maintenance payments can be a complex and frustrating process, especially when the responsible parent fails to comply with court orders. In South Africa, there are several legal remedies to help enforce these orders and ensure that children receive the support they need. Here, we outline four effective strategies for enforcing child maintenance orders.

What is Child Maintenance?

Child maintenance is a legal requirement compelling parents to financially support their children. This obligation, detailed in the Children’s Act 38 of 2005 and the Maintenance Act 99 of 1998, covers essential expenses such as education, healthcare, clothing, and other basic needs. A maintenance order issued by the court specifies the amount and frequency of payments the non-custodial parent must make.

Four Legal Remedies for Enforcing Child Maintenance

1. Warrant of Execution
   • A Warrant of Execution allows for the seizure and sale of the defaulter’s movable assets to cover overdue maintenance payments. To initiate this process, you must apply to the court for the warrant. Once granted, the sheriff is authorised to identify and attach the defaulter’s property, with the proceeds from the sale used to settle the outstanding maintenance.

2. Emoluments Attachment Order (Garnishee Order)
   • This order mandates that a portion of the defaulter’s salary be directly deducted and paid towards the maintenance arrears. The employer is legally bound to comply with this order, ensuring regular and consistent payments. Additionally, under the Pension Funds Act 24 of 1956, outstanding amounts can be deducted from the defaulter’s pension fund.

3. Attachment of Debt
   • The Attachment of Debt allows for funds owed to the defaulter by third parties to be redirected towards maintenance payments. This could include money in a bank account or payments expected from debtors. This method is particularly effective if the defaulter has financial resources but is reluctant to pay.

4. Criminal Prosecution under Section 31
   • Section 31 of the Maintenance Act provides for criminal prosecution of parents who fail to comply with maintenance orders. This can result in imprisonment for up to three years or a fine. To pursue this option, a criminal charge must be laid against the defaulter, leading to a court summons. This approach is often a last resort but serves as a strong deterrent against non-compliance.

Required Documentation for Enforcement

To enforce a child maintenance order, you will need the following documents:

• The original maintenance order from the court
• Proof of payments or non-payments, such as bank statements or receipts
• Correspondence with the defaulter regarding maintenance payments
• A detailed record of the arrears owed

These documents are essential for building a strong case and facilitating the legal process.

Important Considerations in Child Maintenance Enforcement

• Stay Persistent: The legal process can be lengthy and challenging, requiring patience and persistence.
• Seek Legal Advice: Consulting with a family law attorney can provide crucial guidance and improve your chances of success.
• Focus on the Child’s Needs: The primary objective of maintenance is to support your child’s well-being. Keeping this goal in mind will help maintain your determination.
• Case Specificity: Each case is unique, and the court will consider the specific details and evidence of your situation.

Conclusion

Enforcing child maintenance orders in South Africa involves utilising various legal avenues to ensure compliance and support for your child. Whether through asset seizure, salary deductions, debt redirection, or criminal prosecution, these methods provide robust solutions to non-compliance.

At H&M Attorneys, we specialise in child maintenance cases and are dedicated to offering expert guidance and support. If you need help with enforcement proceedings, legal advice, or have questions about child maintenance, please contact us for personalised assistance tailored to your needs.

H&M Attorneys:
Tel: (011) 463 5580
admin@hmattorneys.co.za