How to enforce a Maintenance Order
28 February 2021 | JP Louw
A maintenance order can be granted as an interim order during a Divorce matter, at the finalization of the Divorce, or with a Maintenance order in terms of the Maintenance Act.
In the event that the person against who a Maintenance order was granted fails to pay the maintenance and stay in default for 10 days, then the Maintenance Act provides three remedies to enforce the Maintenance Order: in terms of the Maintenance Order, Chapter 5 of the Maintenance order:
- Execution against property:
In terms of Section 27 of the Maintenance Act, one can apply to the Court to obtain a Warrant of Execution against the movable property of the person who is in arrears with Maintenance which is issued by the Registrar or Clerk of the Court. In the event that the movable property is not sufficient to pay the outstanding Maintenance or there is no movable property, the Warrant can be issued against the immovable property of the defaulting party, and the Sherif may attach the immovable property and sell same on a public auction if the Court declares such property executable. The proceeds of the sale will be utilized to pay for the arrear maintenance.
- Emolument attachment:
In terms of Section 28 of the Maintenance Act the person in whose favor the Maintenance order was granted can apply to the Maintenance Court to register a Garnishee Order against the salary of the person who fails to make payments in terms of the Maintenance order. The defaulting party has to be formally employed. The Garnishee Order will be served on the defaulting party’s Employer, who will deduct an amount as set out in the Garnishee Order, granted by the Court, in payment of the arrear Maintenance as well as the monthly Maintenance. The Garnishee order will continue to be in force after the arrear maintenance is paid in full and the monthly maintenance continues to be deducted from the defaulting party’s salary.
- Attachment of debt:
In terms of Section 30 of the Maintenance Act, one can apply to the Maintenance Court to attach debt owed to the defaulting party. The debt must be owed by a third party to the defaulting party, or to be owed in the future or accruing. The Court can grant an Order that such debt is attached to pay the arrear maintenance.
The Maintenance Act provides the above remedies to enforce a Maintenance Order. It is important to take notice that every application as set out above needs to be done in the prescribed form and manner. To enforce maintenance the Maintenance Order together with proof of the default and all relevant information regarding the employment or debt of the defaulting party should be attached to the application, depending on which remedy one wishes to make use of, to enable the Court to grant the relevant order.