What happens when you don't pay child maintenance?
When the respondent fails to comply with the terms of a maintenance order, and the order remains unsatisfied for a period of 10 days, the complainant may apply to the maintenance court where the respondent is resident for:
- authorisation to issue a warrant of execution;
- an order for the attachment of emoluments (garnishee order); or
- an order for the attachment of debt.
Remember, not paying maintenance is a criminal offence and the respondent can be fined or imprisoned for up to 1 year, or both. The maintenance officer may also have the respondent blacklisted. To escape punishment, the respondent must show to the satisfaction of the court that he/she could not pay maintenance due to a lack of money or income.
How is a warrant of execution issued?
The maintenance court may, on application, authorise the issuing of a warrant of execution. A warrant of execution is a method of enforcing judgments and empowers a court sheriff to attend a judgment debtor’s address to take goods for sale. The warrant of execution will first be issued against the respondent’s movable property. If the movable property is insufficient, only then will it be issued against his/her immovable property.
The complainant must prepare Part A of Form L of the annexure to the Maintenance Regulations. Three copies must be lodged with the clerk of the maintenance court, who will issue the warrant of execution by preparing Part B of Form L, provided he/she is satisfied that authorisation was granted and the warrant has been properly prepared.
The clerk will return the original warrant of execution and one copy to the complainant and file the second copy in the relevant court file.
The original warrant and the copy must then be handed to the sheriff or maintenance investigator for execution. Once the warrant has been executed, the sheriff or investigator must complete Part C and, if applicable, Part D of Form L and return it to the clerk.
Can a warrant of execution be set aside once granted?
The respondent may apply to the maintenance court to have the warrant of execution set aside or suspended. The respondent must give notice of his/her intention to apply to the complainant at least 14 days prior to the application being heard. The court may, at the hearing of the application, request either or both parties to give evidence orally or in writing. When suspending a warrant of execution, the court may grant an order for the attachment of emoluments or the attachment of debt.
Can a garnishee order be issued against the respondent’s salary?
Garnisheeing or the attaching of emoluments is the process of deducting money from an employee's monetary compensation (including his/her salary), sometimes as a result of a court order. A garnishee order can be issued where an order made by the maintenance court remains unsatisfied for a period of 10 days or when the court suspends a warrant of execution.
The court may issue a garnishee order immediately or in the future against the respondent for the amount he/she has failed to pay, plus interest, as well as for the costs of the attachment. Within seven days of the order, the maintenance officer must give notice and a copy of the order to the respondent’s employer. The notice to the employer must substantially correspond with (i.e. be similar to) Part A of Form O of the annexure to the Maintenance Regulations. The order authorises the employer to deduct the amount mentioned in the order in monthly instalments from the respondent’s salary and to pay this money to the complainant, until the full amount has been paid.
If the respondent becomes unemployed, the employer must give notice to the maintenance officer within seven days. If the employer fails to pay as stated in the order, the order may be enforced against the employer.
Can an attachment of emoluments be suspended or amended?
If the aggrieved party can show good cause, an order for the attachment of emoluments may be suspended, amended or set aside by the maintenance court. The respondent must give notice of his/her intention to apply for suspension or amendment to the complainant at least 14 days prior to the application being heard. After hearing such an application, the maintenance court may call either or both parties to give written or oral evidence.
The application must substantially correspond with Part A of Form N of the annexure to the Maintenance Regulations, whereas the notice must substantially correspond with Part B of Form N.
Can one attach a debt owed to the respondent?
If the complainant knows that someone else owes the respondent money, for example, an attachment of debt order can be granted, which will order the respondent’s debtor to pay the monies owed to the complainant instead. An application for the attachment of debt can be granted where an order made by the maintenance court remains unsatisfied for a period of 10 days or when the court suspends a warrant of execution. The maintenance court may on application by the person in whose favour a maintenance order was made, or when it suspends a warrant of execution, make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover that which the creditor (respondent) failed to pay, together with interest thereon as well as the costs of the attachment. This order will direct the person who has incurred the obligation to make the payment specified in the order.
Notice of such application must be given at least 14 days prior to the date on which the application is to be heard. The application must be similar to the example shown in Part A of Form P of the annexure to the Maintenance Regulations, whereas the notice must correspond with Part B of Form P.
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