In terms of South African Law, both parents have a duty to maintain their children according to their respective means.
Specifically, Section 15(3)(a) of the Maintenance Act 99 of 1988 states that when deciding the amount to be paid towards maintenance, the maintenance court takes the following factors into consideration:
- The duty of supporting a child is an obligation which the parents have incurred jointly;
- The parents’ respective shares of such obligation are apportioned between them according to their respective means; and
- The duty exists, irrespective of whether a child is born in or out of wedlock, is adopted, or is born of a first or subsequent marriage.
Should a person fail to make any payment in terms of the maintenance court order, there is certain relief offered to the individual/child who is disadvantaged by this, such as:
- A warrant of execution can be issued against the defaulting party;
- An order for the attachment of the defaulting parties’ salary (emoluments/garnishee order); or
- An order for the attachment of a debt.
In general, a maintenance order is equivalent to any other type of order granted by a court and by failing to abide by that order, the defaulting party can be held in contempt of court. Further, any person who fails to make any payment in accordance with a maintenance order is guilty of a criminal offence and can be fined or imprisoned for up to 1 (one) year, or both (Section 31(1) of the Maintenance Act). The defaulting party can also be blacklisted with any credit bureau due to his/her non-payment.
Noteworthy is that the constitutional court recently ordered a home sold in execution of a divorced father who failed to honour his monthly maintenance payments.
Written by Maya Narsai Makan on 26 September 2018 at Alan Levy Attorney’s office in Sandton, Johannesburg.
MAYA NARSAI MAKAN specializes in Divorce and Family Law Matters and is an Associate at Alan Levy Attorneys Notaries and Conveyancers.
Maya can be contacted on firstname.lastname@example.org or 011 326 8050.