Will there be consequences for Non-Compliance with Maintenance Orders?
Civil Remedies
If a parent or guardian against whom a maintenance order was issued does not comply with it, such maintenance order can be enforced in any of the following ways:
- Execution against property;
- Attachment of Emoluments; and
- Attachment of any debt.
The complainant must approach the maintenance court with the necessary application. This process is started by completing an “Application for Enforcement of Maintenance or Other Order in terms of Section 26 of the Maintenance Act, 1998 (Act No. 99 of 1998)” form. This form can be obtained from your attorney, from the maintenance court or be downloaded from the Department of Justice’s website. The maintenance officer will forward the completed form to the magistrate who may issue an order. For this order to be issued all relevant information must be provided on the application form. This includes information such as the whereabouts of the defaulting parent/guardian, calculations of how you reached the claim amount, etc.
Take proof with you to court to no maintenance had been paid in the form of bank statements. You need to be clear in your application in stating what relief you sought in this application. Once your application is in order, a few different orders can be made. One option is an emolument attachment order where the order is made against the defaulter’s employer to the effect of subtracting the maintenance amount directly from the defaulter’s salary before the salary gets paid out to the defaulter. Another option is to attach the defaulter’s property is he/she has no income. The property will then be sold on public auction ant the proceeds will be paid to you as maintenance.
Criminal procedure
Not attending to a maintenance order is a criminal office and a defaulter can be convicted for this. The defaulter will be liable on conviction to a fine or imprisonment for a period not exceeding one year without the option of a fine. Once you laid your complaint, with the “Complaint of Failure to Comply with a 11 Maintenance Order for purposes of Section 31(1) of the Maintenance Act, 1998 (Act 99 of 1998)” form, the maintenance court would subpoena the defaulter to the criminal court. The form can be obtained from your attorney, the maintenance court or from the Department of Justice’s website. Once the date has been set for a trial you will be subpoenaed as a witness to give your evidence as per the maintenance order, the outstanding maintenance amount and any other relevant information. Should the court find the defaulter guilty, the court may grant an order for the recovery of the arears maintenance together with the sentence imposed on the defaulter.
Do you have any choice in the method of prosecution?
The choice in method of prosecution lies with the prosecuting authority and not with the defaulted party. A decision will be made on the prosecution authority’s discretion after taking all circumstances into consideration. It is important to note that defaulters don’t always gets prosecuted with the criminal procedure. It depends on circumstances and the prosecutor’s judgment. However, it still remains a real possibility and should not be disregarded as something that will not happen.