What to do if maintenance is not being paid

Go back to the Maintenance Court. That is the short answer, and it is free.

If there is a maintenance order and it is not being paid, the Maintenance Act 99 of 1998 gives the court real enforcement powers. It can order the money to be taken directly out of the defaulter's salary, send the sheriff to attach and sell their property, have their details sent to the credit bureaus, and have them prosecuted criminally. You do not need an attorney to start any of this.

The most common mistake is waiting. Arrears build, the defaulter gets used to not paying, and by the time you act there is a large debt that is harder to recover. Act in the first month or two.

Step one: gather the proof

Before you go to court, put together:

• A copy of the maintenance order or the divorce order containing the maintenance provisions.
• Bank statements covering the period, highlighting what came in and when. This is the single most important document. A schedule showing month, amount due, amount paid and shortfall is exactly what the maintenance officer needs.
• The defaulter's details: full name, identity number, address, employer's name and address, and any other income you know of.
• Any messages where they acknowledge the debt or explain why they have not paid.
• Your own identity document and the child's birth certificate.

If you were being paid in cash, that is harder to prove. Ask for payment into a bank account going forward, and say so in writing.

Step two: lodge the complaint

Go to the Maintenance Court at the Magistrates' Court, either where the order was made or where you live. Tell the clerk you want to lodge a complaint of default, sometimes called a maintenance enquiry into the failure to pay.

A maintenance officer opens the file, and the defaulter is summoned to explain themselves. If they do not attend, a warrant for their arrest can be issued.

If you do not know where they work or live, the Maintenance Court has maintenance investigators who can trace people and obtain financial information, including from employers and banks. Give the court whatever detail you have. Not knowing the employer is not a reason to stay at home.

Step three: the enforcement orders available

Once default is established, the court has several tools. It can use more than one.

An emoluments attachment order. This is the one that works most reliably. The court orders the defaulter's employer to deduct the maintenance, plus an amount towards arrears, from their salary and pay it over. The employer is legally obliged to comply. If the defaulter has a formal job, ask for this first.

Attachment of a debt. Where money is owed to the defaulter by a third party, for example a bank account, a pension pay out, a debtor or a tenant, the court can order that person to pay it over instead.

A warrant of execution. The sheriff attaches the defaulter's movable property and sells it, and the proceeds go towards the arrears.

Referral to credit bureaus. A maintenance defaulter's personal details can be furnished to credit bureaus. Losing access to credit motivates a lot of people who ignore letters.

Criminal prosecution. Failing to pay maintenance in terms of a court order is a criminal offence. On conviction a person can be fined or imprisoned, and a court can also order the recovery of the arrears. The arrears do not disappear because someone is convicted.

Where the order was made by the High Court, contempt of court proceedings are another route, but that is a step that usually needs an attorney.

What if there is no order yet?

You cannot enforce an informal arrangement. If you only have a verbal agreement or a WhatsApp promise, your first step is to apply for a maintenance order, not to enforce one. That process is also free. See how child maintenance is calculated, and use our maintenance estimator to build the monthly budget you will need. The estimator is illustrative only and does not predict what a court will order.

An order can generally be backdated to the date of your application, which is another reason to apply early.

What not to do

Do not withhold contact. Maintenance and contact are separate legal duties. Stopping a parent from seeing the child because they have not paid does not help the child, does not get you paid, and will count against you if the arrangements for the children are ever revisited.

Do not take matters into your own hands. Removing property, going to their workplace or posting about them publicly can create problems for you, including a harassment complaint.

Do not accept a new informal arrangement without changing the order. If you agree to a lower amount to be helpful, get it made an order of court. Otherwise the original order stands and arrears accumulate on paper, which creates confusion later.

If you are the one who cannot pay

Go to the same court and apply to vary the order. Bring proof of the change: a retrenchment letter, a medical report, a new payslip.

Simply paying less, or paying nothing, is not an option. The order stands until a court changes it, arrears accumulate whether or not you had a good reason, and you can be prosecuted. Courts are generally receptive to a parent who comes forward early with proof and a proposal, and unsympathetic to one who stops paying and waits to be summoned.

Getting help

The Maintenance Court itself costs nothing and the staff are there to assist you with the forms. If your matter is complicated or you need advice, Legal Aid South Africa on 0800 110 110 has a means test, and university law clinics in most large centres help for free.