Family Law > Problems and Family Law > 5. Child Maintenance Is Not Paid After a Divorce
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5. Child Maintenance Is Not Paid After a Divorce

“I got a maintenance order against the father of my children. But he still doesn’t pay support.”

What Does the Law Say?
  • Go to the maintenance office and complain. It is important to make a formal complaint every time when the father doesn’t pay.
  • If the father is employed and failed to pay his maintenance, the mother must ask the court to make an order to get the maintenance deducted from the father’s wage by the employer. This is called a garnishee order. The consent of the father is not required for a garnishee order and the employer has a duty to obey the court order.
  • If the father does not pay, he will be in contempt of court which is a criminal offence. The police will give him a paper telling him he must come to court where he must explain why he did not pay the money. If he doesn’t have a good reason, the court usually tells him that he must pay all the maintenance he owes, or he will go to jail.
  • If maintenance is not paid you can ask the court to issue a warrant of execution. This means the court orders property of the father to be attached and sold to cover the cost of the maintenance. Complainants sometimes have to pay a fee of approximately R150 towards the costs of the sheriff. This cost varies but it can be recovered from the maintenance debtor in the end.
Some More Points About Maintenance

You can ask the maintenance court to make the maintenance amount higher even if the father is behind in his payments. You must show good reasons for needing more money. You can ask the court to make an order that the maintenance goes up automatically every year either by a set percentage, for example 10% or by the official inflation rate. This means you won’t have to go back to court regularly just to keep up with the rising cost of living. There may still be other reasons to apply for an increase, for example, you lost your job, the father got a much better job or a child had unexpectedly high medical expenses.

The father can also ask the maintenance court to make the maintenance money lower. He must show the court that since the court order was made, he earns less money. Or he can show that the mother or children can now support themselves.

You do not need an attorney to get maintenance through the maintenance courts. So it does not cost you anything. But some people want an attorney to help them when they go to court. You can do this, but then you have to pay the attorney. Legal aid will not help you get maintenance because you do not need an attorney. Other points about maintenance are:

  • If a man pays maintenance directly to the mother of his children, he should get a receipt from her to prove this.
  • A mother is also entitled to get back-payments of maintenance and medical expenses during her pregnancy and during or after the birth of her child.
  • You are entitled to charge interest on any back-payments of maintenance.
  • To prevent wasting time and travelling, you can telephone the maintenance office and ask whether your maintenance was paid or not.
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