Failure to Pay Maintenance

Steps you can take if your spouse fails to pay maintenance?
If your spouse was ordered to pay maintenance in terms of a divorce order, settlement deed or maintenance court order. You will have the following remedies:

Maintenance enquiry in terms of the Maintenance Act.

  • Lodge a complaint with your local maintenance court;
  • A maintenance officer will investigate an enquiry.
  • If your complaint is justified, the maintenance officer will require the person in default to appear before a magistrate;
  • After considering the evidence, the court will make an order as it deems fit including granting a garnishee order requiring his/her employer to deduct the maintenance amount from his/her salary.

If your maintenance order was granted by the maintenance court

  • If maintenance falls into arrears, you can execute your claim against his property, goods, emoluments (any monies that may be due to him) or any debts that are due to him;
  • The maintenance court must however authorize the issue of a warrant of execution to attach goods, emoluments or debts.
  • The application for the authorization of a Warrant of Execution must be accompanied by a copy of the maintenance order and a statement under oath stating the amount which the person against whom the order was made has to pay. All these forms are available at the maintenance court.

If your maintenance order was granted pursuant to a decree of divorce

  • You can apply to the High Court that issued that decree with a request to issue a Warrant of Execution against your spouse. You will need your attorney to assist you in that regard.
  • You could ask your attorney to take steps to obtain the order.

Criminal procedure

  • A person who fails to make a payment in accordance with a court or maintenance order is guilty of an offence and liable on conviction to a fine or to imprisonment or to imprisonment without the option of a fine unless the defence that failure to make a payment in terms of a maintenance order is because of lack of means;
  • Your are entitled to lay a criminal charge against the defaulting person if he/she fails to adhere to the terms of the decree of divorce or any order made by a maintenance court.

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