The laws are responsible to ensure the collection and enforcement of child maintenance in South Africa. However, in several cases, the father who has been paying without a court order simply stops or is unable to pay. What can you do in such a situation? Read on to find out more from Blake Attorneys, expert family law litigators in South Africa.
Section 26, Section 27 and Section 28
A recent amendment of the Maintenance Act allows the Court to recover arrears even without any Court order, providing you can prove that there was an agreement to pay maintenance.
The civil provisions in the Maintenance Act in sections 26, 27 and 28 provide that you can attach your ex’s salary. You can also attach any payments due to him including money in his bank accounts. The most useful process is to attach his Retirement Annuity or Pension Fund as this puts cash in your pocket within a short period of time and your ex cannot access that money to remove it before the order is granted. This makes it a very useful procedure for anyone who has a very unco-operative ex.
Failure to pay child maintenance is a criminal offence
Although the failure to pay child maintenance is a criminal offence, which can lead to a fine or in more stringent conditions, imprisonment, the maintenance prosecutor will not proceed with a criminal matter where you don’t have an existing court order. In any event, criminal prosecution takes a long time and requires a lot of work by the prosecutor. This is really an option only when civil proceedings are not possible as it does not put money in your pocket.
Where to start – if you have no order
The first step if you are not being paid the due child maintenance amount is to lodge a complaint with your local maintenance officer at the closest maintenance court. You do that by showing that maintenance was being paid (bring your bank statements) and completing the form attached, asking for an order in terms of Sections 26, 27 or 28.
Very often maintenance officers will simply suggest that you bring a new application and that is good advice as you can apply for a larger amount than you were getting. It is important to not delay these applications as the court is unlikely to grant or award arrears where there is no existing order.
For more information on child maintenance in South Africa and your options if your ex defaults, contact Blake Attorneys today.