Maintenance in Family Law
In South Africa, maintenance is the legal obligation to provide for the financial needs of a spouse, former spouse, and/or children. The purpose of maintenance is to ensure that dependants are adequately supported in accordance with their needs and the financial means of the person responsible for paying.
There are different types of maintenance recognised under South African law:
- Child Maintenance:
Both parents are legally obligated to support their children according to their respective means. This includes housing, food, clothing, education, medical care, and other necessary expenses. - Spousal Maintenance (During Marriage and Divorce):
A spouse may be entitled to maintenance during the subsistence of a marriage, upon separation, or pending the outcome of divorce proceedings (interim maintenance). - Post-Divorce Maintenance:
Depending on circumstances, one spouse may be ordered to pay maintenance to the other spouse after divorce, particularly if the recipient spouse cannot adequately support themselves. In this instance we refer to spousal maintenance or rehabilitative maintenance. - Emergency or Interim Maintenance:
Temporary maintenance orders (often under Rule 43/58 applications) to cover urgent needs pending divorce finalisation.
The Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005 govern how maintenance is enforced. Applications can be made at the Maintenance Court or as part of divorce proceedings. Courts assess the needs of the dependant/s and the financial ability of the person from whom maintenance is claimed.
Failure to pay maintenance is a criminal offence and can result in fines, imprisonment, or garnishee orders against the defaulter’s salary or bank account.
The remedies at your disposal if a party fails to comply with a maintenance order, included:
- Garnishee Orders:
A garnishee order allows a creditor to attach debts (owed to the judgment debtor) from a third party (the “garnishee”). Example: attaching money in the debtor’s bank account, or rental income payable by a tenant. The third party (garnishee) must pay the attached funds directly to the creditor. - Warrants of Execution:
A warrant of execution is issued by the court after judgment, authorising the sheriff to attach and sell the debtor’s movable or immovable property and the proceeds of the sell will then be utilised to satisfy the judgement debt. Movables (furniture, vehicles, etc.) are attached first and if insufficient, immovables (like a house) may be attached and sold at a sheriff’s auction. - Emoluments Attachment Orders:
Commonly known as a salary garnishee. Such order directs an employer to deduct instalments from the debtor’s salary/wages and pay it directly to the creditor until the debt is settled.
