MAINTENANCE– What is the Worst that can happen when Parents do not maintain their families?

Every family institution is underscored by a legal duty to maintain each other– in the case of parents, they must maintain their children. Likewise, the partners also undertake a reciprocal duty to maintain each other. The right to maintenance can be enforced and protected through courts. If such a right is exercised through Courts, what is the worst that can happen for a maintenance defaulter?

In this article, we will consider the current legal position regarding this issue.

HOW DOES MAINTENANCE WORK

Parents have a legal duty to maintain their children, sustain and care for their families. As a norm, the acknowledgement of this duty ought to be voluntarily discharged. Parents should see to it that they maintain their families. In the event that a parent does not voluntarily maintain their family, for whatever reason, the other interested parties may approach the court for a maintenance order.

The Court when faced with a maintenance application will first determine if there is an existence of a legal duty to maintain, this is established from the nature of the relationship between the person claiming maintenance and the one from whom maintenance is claimed. Secondly, the court, once satisfied that there is a maintenance legal duty, will determine if there is a need for such maintenance and thereafter, what are the means of the party from whom maintenance is claimed from. After considering these factors, the court will then make an order directing an individual to pay a certain amount of maintenance.

WHAT HAPPENS WHEN A MAINTENANCE COURT ORDER IS NOT COMPLIED WITH?

The Maintenance Act has two provisions, first is the civil procedure avenue that can be used to ensure that maintenance order amounts are recovered. In terms of this provisions, area maintenance can be recovered by the attachment of assets of the maintenance defaulter to the extent of attaching their pension fund interest.

Secondly, it is a criminal offence to not comply with a court order directing for the payment of maintenance. Consequently, the Maintenance Act allows for a maintenance defaulter to be criminally charged and persecuted for intentional default to the extreme extent that they may be sentence to imprisonment and have a criminal record.

As of late, the Minister of Justice and Constitutional Development has concluded a Memorandum of understanding on the Maintenance Online Listing of Defaulters Project with third parties such as the Consumer Profile Bureau and Social Justice Foundation. The goal aimed at is that, defaulters will be deterred from intentionally defaulting to pay maintenance for fear of this additional consequence.

The department of Justice will develop a system to facilitate the forwarding of the details of persons against whom Child Maintenance Enforcement Orders have been granted (Maintenance Defaulters) to a partner Credit Bureau who will in turn make this information available to all other Credit Bureaus and Credit Providers. As a direct consequence, when a person defaults with their maintenance obligations, that will affect their credit record and score, in turn, credit providers will consider that before extending any credit facilities to the said defaulter. It is hoped that this initiative will address the issue of unpaid maintenance and ensure that maintenance obligations are respected and honoured.

CONCLUSION

It is in the best interest of children to be maintained. Those who have the obligation to do so, in the family setting or otherwise must discharge their duty. The law provides avenues to ensure that defaulters are brought to the book. Likewise, it is advised that those who need to apply for maintenance and/or enforce maintenance orders approach an expert legal practitioner to ensure that their rights are championed. Similarly, there are other factors at play when maintenance is at issue, persons from whom maintenance is claimed will be wise to seek legal advice.

Reference List:

• The Maintenance Act 99 of 1998, as amended.
• South African Government: Minister Thembi Simelane signs Memorandum of Understanding on Maintenance Online Listing of Defaulters Project. Media Advisories.