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.
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.
Please advice, what can I do if my ex-husband refuse to pay child support. After a long battle and cost for my account, I managed to get a garnishee order against his salary but just after two payments he resigned from his work and now refuse to give me any information about his new work and employer because he knows that the garnishee order must be served again on his new employer to deduct the maintenance from his salary.
You can get a court order to attach his pension. You need to go back to court and get legal action against him.
Good Day
Please advise what can I do if the parent is no longer living in South Africa and has not paid Maintenace due since the divorce. He now lives in the USA and to date I have not received anything although he keeps promising that he will pay it. Is there anything that can be done considering that he is currently living illegally in the USA ?
I think you would need to contact a lawyer – sounds like it may be an expensive route as they would have to make a claim in a US court. But if he has any assets locally especially a retirement fund you could use that
can I please ask if the court is not doing anything about the father of the child who is not paying the maintenance
I tried to go to the court but they told me that they will make him pay, even today he did not pay and now I am for away from the place where I was attending the court.
I tried to go to other court to ask if they can help me but unfortunately.Is the anthing I coud do to make him pay for the maintanace without going back to Gauteng(0739434369)
I am sorry to hear that. The courts could order the maintenance to be deducted directly from his salary but it would require you to return to the court. Find out if there are any pro bono legal services in your area – many are attached to universities for example.
hello Maya, what happens if a spouse is paying for all the costs i.e. bond, school fee’s, rates etc… and has no more money to pay for anything else including rent on their own property. Can a judge order for their parents to pay instead? thank you
Do you mean the parents of the spouse? No, as far as I am aware there is no legal requirement for a parent to support an adult child. There is however a requirement for an adult child to support a financially destitute parent
What happens when you only pay half of your maintenance
You would still be in breach of the court order
Hi
My kids father is in arrears since 2017 and we have now requested for an attachment of debt, he claims that the order cannot be processed from. His provident fund with Alexander forbes. Is this true?
The courts can place an emolument order on his salary which would deduct his monthly obligation. Legally one can request the amount to be paid from the provident fund and this is causing an admin headache for retirement administrators. But if they have a court order they would need to comply. You may find this helpful https://mayaonmoney.co.za/2017/07/fall-behind-maintenance-payments-pension-may-risk/
The maintenance is forcing me to pay money that I dont have
Hi Maya, I have just had a harrowing EIGHT YEAR BATTLE TO REINSTATE MY UNPAID MEDICAL MAINTENANCE, at the corrupt Randburg Court, and have won the case but the prosecutor refuses to include ALL THE Policies that my ex had, but failed to expose at our divorce in 2009. During this case we found MULTIPLE investment and RA’s some of which he has cashed in. The court refuses to obtain the info I need, eg. when were they liquidated, into which account, whose name and amount to that I can claim these all back. Can you put me onto someone who can do this for me?Kind regards Wendy
That sounds awful! There are divorce lawyers who have investigators that look for this type of information – that may be a place to start but no doubt costs money…
Does this also apply to unmarried parents who don’t have a maintenance order in place? If the other parent suddenly stops paying maintenance, what steps are to be followed?
They can only apply a court ordered maintenance agreement
can the custodian of kids demand fees for water, lights, sewage and dstv too as part maintenance claiming.
Yes – everything that goes into the cost of caring for a child can be included – even clothes etc. It is then divided fairly
What happens when you pay maintenance but your spouse does not use that money to pay the schools or other items for your child, the school is now claiming that money from me even though I paid the maintenance to cover these costs.
You would need to take this up with the lawyers but I would recommend you change the maintenance agreement so that you pay the school fees directly