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MAINTENANCE - FAQ
INTRODUCTION The Maintenace Officer may make a maintenance order compelling the defendant to pay maintenance in a particular form and manner. He may also order the defendant to pay arrears from date of birth as well as costs of birth. The Maintenace Officer may make specific orders such as compelling the defendant to add his child as a dependent on his medical aid scheme. He may also attach annuities, provident funds and similar for maintenance, but this is restricted to cases where defendant has acted in bad faith. He may also order an emolument attachment order. When variation of existing order is sought, the defendant must show “good cause” - basically changed circumstances of the minor child, or the parents, that would justify a higher or lower amount. THE HEARING Should Defendant not arrive but has consented in writing to the judgement (Form G) an order may be made. An order may be made against an absent Defendant if he consents in writing to judgement. Should defendant fail to attend, and he does not consent to judgement in writing and Maintenace Officer is satisfied that he had knowledge of the proceedings, he may allow plaintiff to adduce evidence and make an order as he sees fit, including default judgement. It should be noted that failure to attend where he does not consent to default judgement is a criminal offence. Steps defendant may take: PATERNITY If paternity is disputed, the court may order a paternity test. If paternity is disputed and both parties agree to a test, but cannot afford it, the court has discretion to order state to pay part or all of the cost of the test. APPEALS Either party may appeal against an order of the maintenance court. However, the lodging of an appeal does not suspend payment of maintenance and that whoever lodges will have to bear the cost. As appeals are made to the High Court this can be very expensive. One cannot appeal against judgement by consent or default judgements. An appeal must be lodged within 20 days, setting out what is being appealed and the grounds of appeal. ENFORCEMENT OF MAINTENACE ORDERS Maintenance Orders can be enforced through attachment of property, emoluments attachment order or the attachment of any debt. Interest is payable on arrear maintenance. Action may be taken once at least 10 days have passed after due date of maintenance payment. To authorise above remedies plaintiff must complete (Form K), attach a copy of maintenance order and accompanied by a statement under oath (Form Q) stating that defendant has failed to meet his maintenance obligations. If a defendant wishes to set aside an attachment order he must complete (Form M). If he can satisfy court at an enquiry that he has met his obligations, the attachment order will be rescinded. Court will consider his ability to pay, provided it is not self-created, such as avoiding maintenance by not working, the needs of the child, and defendants conduct to date as well as any other relevant factors. A warrant of execution may be suspended and replaced with an emolument attachment order is granted, the employer will become liable for maintenance and non-payment of maintenance would then be pursued against the employer for as long as defendant is in his employ. Such an order may be rescinded, amended on good cause. Application for rescission, amendment or suspension is made after giving notice to other party on (Form N). A warrant of execution may be suspended and replaced with an attachment of debt owing to the defendant. (Form P) must be completed for rescission, amendment or suspension of such an order. PENALTIES A claim of inability to pay will not succeed if due to defendant's unwillingness to work. Failure to pay maintenance is a criminal offence which carries the possibility of a year in prison with or without the possibility of a fine. The defaulters details may also be referred to credit bureaux. WHERE DEFENDANT IS RESIDENT IN FOREIGN STATE If one of the parties is in a foreign state, refer to act 80 of 1963 |
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