If a couple has gotten divorced and they have a child, then it’s the responsibility of both parents to support the child. The duty to pay maintenance cannot be avoided, regardless of either parents’ situation. If one parent refuses to pay maintenance, then the other parent can go to a court and make a claim. Being a single parent doesn’t mean being the only one to contribute to maintenance.

What should I do about it?

To deal with a spouse who refuses to pay maintenance you would first need to inform the maintenance officer. The maintenance officer can apply to the court for:

1. A warrant of execution;
2. An attachment order against the defaulter’s salary;
3. An order to attach any debts; and
4. A criminal prosecution.

Does the non-paying parent have a defence?

The only defence that a parent could have for not paying maintenance is having a lack of income. However, if the parent is unwilling to work, such as laziness, then this will not count as a defence. Failure to pay maintenance is taken very serious, guilty parents won’t get much sympathy from the court or others. If the parent is capable of working, then they will be expected to pay maintenance.

But I can’t find my ex-spouse?

Non-paying parents may think that they’re being clever by changing their address and not notifying the court. This is considered a criminal offence, and will result in punishment. Fortunately, it’s not the responsibility of the single parent to find anyone. A maintenance investigator will track down and find a non-paying parent.

How to claim maintenance

If you want someone to pay maintenance or believe that they are not paying the proper amount, then you can follow these steps at your local magistrate’s court. Remember to go the court in the district where you live.

1. Go to the court and complete the form “Application for a maintenance order (J101)”.
2. Also submit proof of your monthly income and expenses.
3. A date will be set on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
4. A maintenance officer and an investigator will investigate your claim and look into your circumstances.
5. The court will serve a summons on the respondent.
6. The respondent then has to either agree to pay the maintenance, or challenge the matter in court.

If found liable to pay maintenance

If the court finds someone liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how the payments must be made. There are several ways the payments could be made. The court can order that the maintenance be paid at the local magistrate’s office or that the amount to be paid into the bank account chosen by the person claiming. The payments could also just be made directing to them. According to the new Maintenance Act (1998), an employer can deduct payments from an employee’s salary, if they’re liable for paying maintenance.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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Maintenance is that part of the divorce order which is not a final determination of the rights of the parties, however, as long as there exists a Court order for maintenance for a certain amount, the person against whom a maintenance order was granted must abide by that order. In cases where the aforementioned party does not pay the maintenance or even fails to pay the entire amount, arrears will accumulate.

The person who is entitled to the maintenance may approach the Maintenance Court for an Application for Enforcement of Maintenance or Other Order in terms of Section 26 of the Maintenance Act, 1998. A party failing to pay maintenance will be in contempt of Court and would thus be guilty of a criminal offence. The party entitled to the maintenance may apply for an S31(1) Form which would result in the matter being dealt with in the Criminal Court.

However, the Maintenance Officer is aware that it is not possible for someone’s financial position to remain the same since the time of which the order is made until the party who is entitled to maintenance reaches a point of applying for an enforcement of maintenance order. Situations change, in some instances people become unemployed which may result in the party against whom the order was made, not being able to pay the same amount of maintenance. Another factor to consider is the fact that the needs of the person who is entitled to maintenance might change.

The party against whom the maintenance order is brought but is failing to pay because he no longer can afford to pay the amount stipulated in the order can bring an application for Substitution or Discharge of Existing Maintenance Order Complaint in terms of Section 6(1)(b) of the Maintenance Act, 1998. This person against whom this application is brought will receive a subpoena to be at Court on a certain date and time. The aforementioned party will have to present 3 months’ latest pay slips, 3 months’ bank statements, a list of proof of all expenses and a copy of his/her ID book.

The party bringing the application will also be requested to present documents to the Court. These documents may include: bank statements, salary slips, statements of monthly income and expenses, a list of movable/immovables and credit card statements.

The party will be subpoenaed to appear in front of the Maintenance Officer and their legal representatives may be present. This meeting with the Maintenance Officer is of a less rigid nature than appearing in Court in front of a magistrate and is of a more inquisitorial nature.

The Maintenance Officer will act as a neutral party. The legal representatives will go through the expenses of each party and find expenses on which the paying party can save money and vice versa in order to make payment easier and to make sure the other party’s luxurious lifestyle isn’t being maintained whilst the paying party hardly makes ends meet.

The Maintenance Officer will take certain factors into account when making an order. These factors may include: the standard of living of the parties, the financial position of both parties and the age of the parties. The Maintenance Officer will make an order which the parties will have to abide by.

In some instances, the father cannot pay the maintenance to his children himself and in those cases, the grandparents of the father will have to pay the maintenance of the grandchild as they also have a duty to support a minor child.

Reference List:

• The Divorce Act 70 of 1979
• The Maintenance Act 99 of 1998

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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Domestic partnerships, also known as cohabitation relationships, are becoming more common in our modern day society, and it therefore becomes ever more important for parties to understand the different legal implications of being married and merely cohabiting. Parties to a domestic partnership do not enjoy the same legal protection as married couples upon termination of the partnership with regards to maintenance claims, property division or succession.

In the South African legal system, there are three forms of fully legally recognised unions, namely marriages, civil unions and customary marriages. However, in our modern society it is becoming more common for couples to live together in domestic partnerships, without ever getting married. It is important for parties to these partnerships to realise that little to no legal protection is provided upon the termination of such a relationship, either by agreement or due to the death of either party.

The general rule for domestic partnerships was laid down in Butters v Mncora: A domestic partnership does not give rise to any special legal consequences, such as that of a marriage or a civil union.

In 2006, the South African Law Reform Commission acknowledged the need for legal protection to be granted and drafted the “Draft Domestic Partnership Bill.” Parliament has however shown no urgency to pass the Draft Bill, and the legal position in South Africa thus remains unchanged.

Maintenance claims

The Maintenance of Surviving Spouses Act entitles a surviving spouse of a marriage, and a surviving civil partner of a civil union, to institute a claim for maintenance against the estate of the deceased. This provides for a claim of any reasonable maintenance needs that they cannot provide for by their own means, until such time that they remarry or pass away.

Parties of a domestic partnership should note that this protection does not extend to domestic partnerships, and thus no such maintenance claim can be made. Should the Domestic Partnership Bill be enacted in the future, section 28 will offer such an opportunity to claim for maintenance. However, at this stage no such protection is afforded.

Property Division

Parties to a marriage have a choice of two matrimonial property regimes.  Simply put this is to be married either in community of property, or out of community of property. Each property system will have different consequences flowing from it either by law or contractually due to an Antenuptial contract. However, no property regimes exist for domestic partnerships, and thus no joint estate can exist as it would in a marriage.

The Supreme Court of Appeal has recently portrayed an increased willingness to extend contract-based legal protection to parties of a domestic partnerships. Contracts can be concluded by parties in domestic partnerships to govern aspects such as division of property upon termination of the partnership. Although these types of contracts are legally enforceable, they may give rise to potential problems. The contract may be concluded solely for the benefit of one of the parties, or circumstances may occur that the parties had not anticipated when the contract was drawn up. In practice however, it seldom happens that parties to a domestic partnership actually enter into a contract.  This may be due to a mutual decision, or due to the fact that parties did not foresee a need for such contract.

Intestate Succession

In terms of the Intestate Succession Act, a spouse of a marriage will inherit if the deceased spouse dies without making a will. This has been extended to include partners of a civil union and customary marriage. Provision for inheritance by a partner of a permanent same-sex partnership has also been made in terms of this Act. This has however not been extended to the termination of heterosexual domestic partnerships, and thus no claim can be made in terms of the Intestate Succession Act on the estate of a deceased partner of a domestic partnership.

Couples living together in cohabitation relationships do not have similar rights to institute claims against the other party upon termination as they would have in a marriage or civil union. This could leave financially dependent parties in unanticipated vulnerable positions.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference List:

• Butters v Mncora 2012 (4) SA 1 (SCA).
• Barratt A “Private contract or automatic court discretion? Current trends in legal regulation of permanent life-partnerships” (2015) 26 Stellenbosch Law Review 110-131.
• Clark B “Families and domestic partnerships” (2002) 119 South African Law Journal 634-648.
• Intestate Succession Act 81 of 1987.
• Maintenance of Surviving Spouse Act 27 of 1990.
• Skeleton A (ed) Family Law in South Africa (2010), Cape Town: Oxford University Press.
• The Domestic Partnership bill in GG 30663 of 14-01-2008.

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