What happens if you don’t pay maintenance?

Lots of parents in South Africa shirk their responsibility of paying maintenance for their children. But these days there are fewer places to hide and the law is on the side of the parent who does provide.

What happens if you don’t pay maintenance? Some recent court cases have shown that there’s no benefit to neglecting your financial responsibilities as a parent and ignoring requests to pay maintenance. If you fall behind with your maintenance obligations you need to act quickly, as failing to pay your fair share is illegal.

“According to the law, parents have a legal obligation to provide a minor with food, housing, clothing, medical care and education or with means that are necessary for providing the person with these essentials,” explains Alexander Forbes Financial Planning Consultants senior wealth manager Kerry Sutherland.

“This is a legal duty and is called the ‘the duty to maintain’. Sadly, divorce is expensive, it means there are now costs for two homes in addition to maintaining the children. If you are the partner paying maintenance, and your financial circumstances change, the onus is on you to approach the maintenance court immediately because the money you owe doesn’t go away if you default on payments. Your outstanding payments will continue to grow and you will eventually have to settle in full, ” says Sutherland.

And if you run, it’s likely that with the combined efforts of the court and police, you’ll be found.

“Since January 2018, if the defaulting parent cannot be traced, the court can grant an order directing cellphone service providers to give the court the last known information of the person in question,” adds Sutherland.

Getting maintenance from your wayward spouse

There are several ways in which the money can be taken from your non-paying spouse in order to fulfil their maintenance obligations – with or without your consent. These are the actions and solutions to consider:

You can blacklist them

If your ex-partner is more interested in racking up debt to pay for a lavish lifestyle you can swiftly put a stop to that through getting them blacklisted. Being blacklisted could mean struggling to get access to credit. This could be anything from trying to buy a new car, rent a house or sign a contract with a cellphone provider or insurance company. The new legislation is taking defaulters much more seriously.

Garnishee orders can be attached

If you are owed money from your ex-spouse, you can get a court order to have their debtors pay you, or compel their employer to pay the salary into your account. The employer is liable to inform the maintenance court if the employee resigns or is retrenched.

Try and negotiate with your partner before taking this action. “Garnishee orders and blacklisting are highly stressful and emotionally draining to all involved, including the children.  Do your maintenance calculations correctly so that you know what you will need going forward in order to maintain your children and do not end up in court,” says Sutherland.

You can get at their pension

There are many benefits to having a pension. One plus is that your money is protected from creditors, but this safeguard falls away if your spouse doesn’t pay maintenance. You’d have to get a court order though, which will be issued to claim arrear payments from the pension fund. This is often used as a last resort though, as garnishee orders on your partner’s employer is the preferred method of getting maintenance paid.

You can get an upfront lumpsum

Divorce agreements can differ vastly, but if you are concerned about not receiving ongoing monthly payments you can opt to negotiate for a lump sum instead. Of course, not everyone has enough money to pay this upfront large lump sum so you can’t hold it against your partner if they can’t afford it.

If you are married in accrual but out of community of property, you divide all assets accrued during the course of the marriage (less inheritance) 50/50 at the time of divorce. This means that if a large lump-sum payment is required, the maintenance-paying spouse might need to sell an asset to pay the other partner. “If you are going to opt for the once-off lump sum, you need to do accurate calculations with a financial planner to forecast your needs and also invest the money correctly,” advises Sutherland.

Tips to help with your maintenance payments

To avoid being blacklisted, here are some tips to help you set up an amicable maintenance agreement and to save money in the process:

  • Try and get your partner to agree to realistic maintenance payments: “Most spouses have an idea of their ex partner’s earning power. What we see in practice is that many spouses think the other earns more than they actually do and has assets hidden away,” explains Sutherland.
  • Pay school fees annually: Some schools offer a discount if you pay school fees in advance.
  • Set up a joint bank account: You may not like your former partner but there’s no reason why you can’t set up a joint bank account. It will help as it will allow both spouses to contribute every month and both can see how the money is being used. “This can be used for expenses that will vary over time such as extra murals, extra lessons, school trips, birthday presents or parties,” says Sutherland.

This article first appeared in City Press.

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