Mc Naught & Co
Enforcement of Maintenance Obligations
We all dream of living in an ideal world, one where people follow the law, parents willingly maintain their children and spouses, even those going through divorce, wish to see the other still looked after. These basic human instincts should prevail above all else, or so one would think. However, we don’t live in that fantasy world and countless parents are taken to the maintenance court every year due to not supporting, or inadequately supporting their children as well as spouses with an obligation of support not fulfilling their obligations. To be fair however, there are more than just a few parents who unfortunately abuse the maintenance enforcement process and take the other parent to court even when they are already meeting all their natural, and legal obligations. For the maintenance enforcement process to function properly, efficient mechanisms need to be in place. This is where the Maintenance Act, 1998 and the Maintenance Amendment Act, 2015 come into play.
The Maintenance Act 99 Of 1998
Since 26 November 1999, the Maintenance Act, 1998 was the main piece of legislation that was used for parents to obtain maintenance for their children. Other legal tools would be making an application in terms of High Court Rule 43 for interim maintenance in a divorce matter, and the Divorce Court would make a final order; In the Magistrate’s Court, rule 58 would apply. Notwithstanding the Maintenance Act being a great and useful tool, as times changed, so too did the legislation.
On 5 January 2018, the entire Maintenance Amendment Act came into operation. In our view, it gave the already existing Maintenance Act some really sharp teeth. Some changes to the Maintenance Act were cosmetic in a sense and other changes (or additions) toughened up the law.
Below is a summary of the amendments I find most relevant:
- If there was a verbal or written maintenance agreement (which was not made an order of the court), the maintenance court can be approached to substitute or discharge it. [Section 6(c)]
- You may lodge a complaint at the maintenance court within the area of jurisdiction of where you reside, carry on business or are employed. [Section 6(2)]
- The maintenance court may issue a direction directing one or more electronic communications service providers to furnish the court with the contact information of the person a complaint has been made against to obtain his or her whereabouts. For example, Vodacom, MTN or Cell C can be approached to provide their client’s contact details. [Section 7(3)]
- The maintenance court can make an interim maintenance order even if the other party does not agree to it. [Section 10(6)]
- The maintenance court can provide your details to credit bureaus if you are in default and civil execution of a maintenance order took place. [Section 26(2A)]
- Non-compliance with maintenance orders could have you imprisoned for up to 3 (three) years. [Section 31]
Whilst it is sad that one needs legislation and potential punishment to bring about what should be a natural event, it is refreshing to see that the law is keeping up with our ever-changing society and making it all the more difficult for maintenance defaulters to get away with it.