Failure to Pay Maintenance

What legal steps can you take if your spouse fails to pay maintenance?

Your spouse has been ordered to pay maintenance in terms of a divorce order or maintenance court order.  If he fails to do so, the following are your remedies:

1.      Maintenance enquiry in terms of the Maintenance Act.

a.       You would lodge a complaint with your local maintenance officer that your spouse, although legally liable to maintain you, has failed to do so;

b.       The maintenance officer will then investigate the complaint and may then institute an enquiry in a maintenance court in the area of jurisdiction in which your spouse resides;

c.       If the maintenance officer is satisfied that your complaint is justified, he or she will require your spouse to appear before a magistrate for examination.

d.       After considering all the evidence, the maintenance court will make such order as it deems fit including granting a garnishee order requiring your spouse’s employer to deduct the maintenance amount from his salary and paying it over to you.

2.      If your maintenance order was granted by the maintenance court

a.       If your spouse fails to make payment, you can execute against his movable property, attach goods, emoluments (any monies that may be due to him) or any debts that are due to him.

b.       You must approach the maintenance court for the authorization of the issue of a warrant of execution to attach goods, emoluments or debts.

c.       The application for the authorization of a Warrant of Execution to attach goods, emoluments or a debt must be accompanied by a copy of the maintenance or other order in question and a statement under oath or affirmation stating the amount which the person against whom the order was made as though to pay.  All these forms are available at the offices of the maintenance court.

3.      If your maintenance order was granted pursuant to a decree of divorce

a.       You can apply to the High Court that issued that decree for the issue of a Warrant of Execution against the property of your spouse.  You will need your attorney to assist you in that regard. Obviously, you will not take such a step unless your spouse has movable assets.

b.       Similarly, you could ask your attorney to take steps to obtain a garnishee order against your spouse’s salary if he is employed or even to attach the proceeds of an insurance policy or pension scheme: Read more

Similarly, you could ask your attorney to take steps to obtain a garnishee order against your spouse’s salary if he is employed.

4.      Criminal procedure

a.       Subject to the defence that failure to make a payment in terms of a maintenance order is because of lack of means, a person who fails to make a particular payment in accordance with a court or  maintenance order is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 1 year or to imprisonment without the option of a fine;

b.       Your are perfectly entitled to lay a criminal charge against your spouse if he fails to stick to the terms of the decree of divorce or any order made by a maintenance court;

c.       Although this step will likely result in your spouse’s being arrested it will not necessarily result in your receiving payment.

d.       On a practical level, however, if your spouse is arrested and he immediately pays all the arrears it is more than likely that the state will drop the charge so this is yet another lever that you have to extract payment.