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Choosing guardians for your minor children

Choosing guardians for your minor children

My husband and I have two minor children. I am concerned about who will look after our children in the event of my husband and I passing away at the same time. We have been advised to nominate guardians in our wills. What should I keep in mind when choosing guardians?

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it? You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent. If the thought of placing the future of your children in someone else’s hands makes you queasy, imagine leaving the decision to someone you do not like, or do not even know. That is why parents should pick legal guardians – the persons who should raise their children if both parents die before the children turn 18.

When preparing a Last Will and Testament, the emphasis is typically on the disposition of property. However, selecting guardians to care for your minor children and nominating them in your Last Will and Testament is just as, if not more important, than distributing assets. The transition to life with guardians is especially traumatic as children come to terms with new parental figures, likely following the untimely death of one or both parents. The guardians you choose will be responsible for helping to heal this wound. It is of the utmost importance to choose guardians with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children.

Choosing guardians

The first hurdle in choosing guardians is finding someone who is willing to act in such an important and responsible capacity. Raising someone else’s children is not a decision potential guardians should take lightly, as assuming guardianship will change the rest of the guardians’ lives, as they step into the roles as surrogate parents. Besides finding willing persons, choosing guardians involves objective and subjective assessments different from choosing other fiduciaries such as trustees. Guardians should be reliable and stable, with sound judgment and values that are similar to your own. The guardians will need to comfort, teach and encourage your children as they grow towards adulthood. Guardians who already have a warm and loving relationship with your children would be immensely valuable in such an emotionally trying transition.

Selecting family members

Instinctively, many think the right guardians for their children are family members. However, in some cases, nonfamily members may be a better fit. Naming friends as guardians is increasingly common, though relatives are still the most popular choice. While family is frequently an obvious choice, circumstances may make this impractical or undesirable. Hopefully your children are comfortable with grandparents, or an aunt and uncle who may have similarly aged children of their own. If this is not the case, close friends with similar values, who live nearby, and who have kids of their own, may be a better option than faraway relatives. The choice is specific to your lifestyle and your relationship with your family.

Naming alternate guardians

Unfortunately, couples divorce and families break up. Choosing a couple as guardians could turn out to be problematic if they divorce or one is otherwise no longer able to serve in the role. Such a scenario could give guardianship to a person whom you are less inclined to have raise your children. If alternates are not named and the nominated guardians are unable to care for your children, the decision as to their care could end up being made by a court. As a result, it is advisable to name alternates in case the first choice is unwilling or unable to act. This way your wishes can be carried out and the paths of your children’s lives are not at the discretion of a judge.

Revisiting your choice of guardians

Once you have carefully selected the guardians and alternates and have nominated them in your Last Will and Testament, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities also change. You will want to make sure that the people you selected a few years ago are still the right choice today.

Reference List:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

MY EX’S NEW PARTNER IS ABUSIVE TO MY CHILDREN

MY EX’S NEW PARTNER IS ABUSIVE TO MY CHILDREN

It is important for a child to have access to both parents, and in a situation where both parents were actively involved in the child’s life, the access to both parents should be as equal as possible. As much as you don’t want to pry on your ex’s time with your children, what should you do if your ex’s new partner is abusive towards your child? Section 28(1)(d) of the Constitution of the Republic of South Africa states that every child has the right to be protected from maltreatment, neglect, abuse or degradation.

What defines abuse?

  • Physical Abuse: This type of abuse is one where the abuser conducts an act which leads to physical bodily harm such as bruises, cuts, burns and fractures.
  • Emotional Abuse: Emotional abuse constitutes domestic violence, and is identified as a pattern of degrading or humiliating conduct towards the child.
  • Verbal Abuse: This kind of abuse may be harder to differentiate from emotional abuse; verbal abuse is the act towards the child, and emotional abuse is the result.

What to do?

A parent cannot stop the other parent from having access to a child. Visitation must be in accordance with the parenting plan. The Children’s Act stipulates that the rights of the children are the most important, and their rights should be protected, promoted and respected. The child’s emotional and intellectual needs are considered when making decisions about what is best for the child.

  • Firstly, try to speak to the person whom you have joint custody with, to try to come up with a solution before approaching legal representatives.
  • If this fails, report the suspected abuse. This report will serve in your child’s favour when in court.
  • Apply for the amendment of the parenting plan. This can include limited visitation which should be administered through the Office of the Family Advocate.
  • Only three people may request amendment or termination of the agreement:
  1. Parents of the child,
  2. The child, or
  3. A person who is acting in the interest of the child.
  • Rights can be minimised or terminated by the court

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

The Children’s Act Explained. (2017). [ebook] p.3. Available at: http://www.justice.gov.za/vg/children/dsd-Children_Act_ExplainedBooklet1_June2009.pdf [Accessed 12 Jun. 2017].

UNOPPOSED AND OPPOSED DIVORCE: WHAT’S THE DIFFERENCE?

UNOPPOSED AND OPPOSED DIVORCE: WHAT’S THE DIFFERENCE?

My spouse said that he/she won’t ‘give me a divorce’. What can I do? Your spouse can oppose the divorce, but it is the Court that grants a divorce, not your spouse. If you convince the court that the marital relationship has irretrievably broken down, the court can grant a decree of divorce even if your spouse does not want to get divorced.

There is a process, called a ‘rule 58’ application, whereby you can ask the court to give an order regarding the care of and access to the children and maintenance pending the finalisation of the divorce. You can even ask for a contribution to your legal costs.

How much does it cost?

In the case of an unopposed divorce (i.e. there is no dispute between yourself and your spouse about the divorce or what should happen), your fees are likely to be limited to the Sheriff’s fees and minor expenses for transport, photocopies, etc. Sheriff’s fees can vary widely, depending on the distance he has to travel and how many attempts he has to make at serving pleadings on the opposing party, but generally these fees would be a few hundred rand. Where a divorce is opposed, the costs become unpredictable and entirely dependant on the specifics of the case.

How long does it take?

Where a divorce is unopposed and there are no complications or children involved, it can sometimes be finalised in as little as four weeks.

Where a divorce is opposed, it can easily take two to three years, or more. In most cases, however, divorces get settled before the parties have to go to Court – even where the divorce started out as an opposed divorce. As soon as the parties in an opposed divorce reach a settlement agreement and the divorce becomes unopposed, it can again be possible to finalise the divorce in as little as four weeks.

What you need to do

Before you approach the Court to start divorce proceedings, you will should get certified copies of as many of the following documents as you can:

  • Your identity document
  • Your Ante-Nuptial Agreement, if any
  • The children’s births certificates, if any and
  • Your marriage certificate

Also make sure you have the following information handy:

  • Your full names, surname, identity number, occupation and place of residence
  • Your spouse’s full names, surname, identity number, occupation and place of residence
  • Date when you got married and where the marriage took place
  • Children’s full names, surnames, identity numbers and
  • Comprehensive details of any funds (such as pension funds, retirement annuities and provident funds) which you or your spouse belongs to.

You may institute divorce proceedings in either a High Court or Magistrates’ Court (Regional Court), but where the parties are representing themselves in a simple divorce, they should approach the Regional Court.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

http://www.legal-aid.co.za/selfhelp/

SAFEGUARDING CHILDREN’S RIGHTS DURING DIVORCE

SAFEGUARDING CHILDREN’S RIGHTS DURING DIVORCE

A2Divorce and the resulting challenges regarding child custody and the responsibilities of parents can be an ugly and difficult process. This is especially true of the children whose emotional and physical wellbeing would have to be taken into account during the entire process. However, the office of the Family Advocate offers an efficient and free service with the wellbeing of the child in mind.

The Family Advocate (FA) manages disputes regarding the responsibilities and custody of children during and after a divorce. The point of the FA is to protect the rights of children and ensure that their best interests are taken into account when it comes to their custody and the parent’s responsibilities. The office of the FA is not just one person but consists of lawyers and social workers who all assist in getting the best outcome for the child/children.

What can the Family Advocate do?

Section 28(2) of the Constitution says, “A child’s best interests are of paramount importance in every matter concerning the child”. This forms the basis of the FA’s role in disputes.

The Family Advocate has the ability to:

  1. Institute an enquiry so as to be able to furnish the court with a report and recommendation on any matter concerning the welfare of the minor child;
  2. Appear at the trial or hearing of any relevant application;
  3. Adduce any available evidence; and
  4. Cross-examine witnesses giving evidence at such trial or hearing of an application.

*According to Mediation in Certain Divorce Matters Act (Act 24 of 1987)

The Children’s Act 2005 (Act 38 of 2005) has also made mediation by the FA compulsory for all parties involved in parental rights and responsibility disputes over children born out of wedlock.

What’s the point of the Family Advocate?

The FA has many advantages when there is a dispute over children. The FA can change the parental rights and responsibilities agreements of the parents without the need to go to court. A court will also take into consideration a report by the FA before making any decision on the child, they are even required by law to do this. Furthermore, a registered parental rights and responsibilities agreement would be considered the same as a court order. The office of the FA also allows for the children involved to express their point of view and desires. In order to ensure the best for the child/children, the FA will work together with social workers, psychologists and other professionals when dealing with disputes.

Reasons to see the Family Advocate

  1. The parties disagree about how to contact or care for a child.
  2. They want to draft, register or change their parental rights and responsibilities agreement.
  3. Disputes about whether an unmarried father of a child born out of wedlock fulfils the requirements making him eligible for the full parental rights and responsibilities of the child.

A court may also order the FA to provide a report on what is best for the children involved in a dispute. Altogether, the FA’s goal is to ensure the child gets the best out of a divorce process and that their rights are protected. They can not only help in disputes, but also provide a comfortable environment and process for what can be a stressful time for the children involved.

Reference:

“The Office of the Family Advocate”. The Department of Justice and Constitutional Development. Accessed from: http://www.justice.gov.za/FMAdv/ on 13/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WHO IS TO BLAME?

WHO IS TO BLAME?

A3Emily and Nathan were a happily married couple in their early thirties with two minor children. Emily was a stay at home mom and Nathan was the breadwinner of the family. The family decided to take a vacation in Sun City, which ended tragically when Nathan was fatally injured on a Valley of the Waves ride. Who was to take care of the family now that Nathan was no longer there and who was to pay the price for the family holiday that ended in a tragic loss?

If the question of negligence is hanging in the air then the obvious word to pop into one’s mind would be that of delict. In Kruger v Coetzee 1966 (2) SA 428 A 430E-G the formulation for negligence was established by Holmes in two steps:

(a) a diligens paterfamilias in the position of the defendant –

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

In the case of Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015) the father and breadwinner of the family died in a tragic accident while on vacation at a mountain resort close to Ceres, Western Cape, after falling off a sheer precipice (a steep rock or cliff). The wife of the deceased took the matter to the Supreme Court of Appeal, who considered three elements, namely wrongfulness, negligence and causation.

The background facts were taken into account, namely the fact that the park was used for recreational purposes for the public upon paying an entry fee. Furthermore, the 150 metres gorge drop where the deceased fell to his death was not visible, especially in snowy weather, nor were there any signs of warning.

Wrongfulness:

The court a quo did not find the Respondents to be wrongful as they did not have the duty to warn guests of the danger that was blatantly apparent to them. However, in the abovementioned case it was reiterated that ”the test for wrongfulness is whether it would be reasonable to have expected the defendant to take positive measures, while the test for negligence is whether the reasonable person would have taken such positive measures; confusion between the two elements is almost inevitable. It would obviously be reasonable to expect of the defendant to do what the reasonable person would have done. The result is that conduct which is found to be negligent would inevitably also be wrongful and visa versa.”[1]

If the abovementioned case is taken into consideration then Emily would most likely be successful in her application for compensation for herself, as well as in her capacity as mother of the two minor children, if it is found that Sun City Holiday Resort was negligent and wrongful and had causation.

[1] Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015)

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your attorney for specific and detailed advice. (E&OE)

WHAT IS THE ROLE OF THE FAMILY ADVOCATE

WHAT IS THE ROLE OF THE FAMILY ADVOCATE

A3bThe Family Advocate has many duties but in the context of Divorce Law, they are mostly consulted for making sure that all Parenting Plans and divorce Consent Papers are in the best interest of any minor children involved. The public can, however, also have access to the Family Advocate and it is important to note that they offer a free service.

The roles of the Family Advocate include the following: to provide education to family members and to others involved in the systems serving the family and youth; to help identify the strengths and needs of families; to be a mediator between the system and the family by helping to educate professionals on the strengths and needs of the family; to help family members understand the different roles of the agencies involved in the system and how they may affect the family and assist families in identifying and utilizing necessary services.

A Family Advocate helps state and local agencies and systems adopt more strengths-based and family-driven programs, policies, and services. The focus is to better meet the needs of families and their youth who have mental illness, co-occurring disorders or substance use disorders and improve outcomes for all, including families, youth, and the agencies they utilize.

A Family Advocate also has the authority to draft Parenting Plans at no cost which will help provide the minor child with a stable and suitable schedule between the two parents. A Family Advocate cannot however provide for a maintenance amount as this falls under the jurisdiction of the maintenance court. Should a parent feel like they are not sure of their rights or responsibilities towards their minor child, the Family Advocate can be approached in order to arrange a meeting between the two parties to mediate the rights and responsibilities between the two parties. This process is also at no cost, however should one of the parties deny the meeting, the Family Advocate has no authority to subpoena them to attend the meeting.

The Family Advocate is a perfect remedy for parents who have their child’s best interest at heart and who aim to provide a stable environment for the child when both parents are no longer together.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

WAT IS DIE ROL VAN DIE GESINSADVOKAAT

WAT IS DIE ROL VAN DIE GESINSADVOKAAT

A3bDie Gesinsadvokaat het baie pligte, maar in die konteks van Egskeidingsreg word hul meestal geraadpleeg om te verseker dat alle Ouerskap-planne en Skikkingsaktes in ʼn egskeiding in die beste belange van enige minderjarige kinders betrokke, geskied. Die publiek het egter ook toegang tot die Gesinsadvokaat en dit is belangrik om daarop te let dat hul gratis dienste aanbied.

Die rol van die Gesinsadvokaat sluit die volgende in: om familielede en ander wat betrokke in te lig rakende die onderskeie stelsels en regulasies wat in plek gestel is om die gesien en minderjariges te help, om te help met die identifisering van die sterkpunte en behoeftes van gesinne; om ‘n bemiddelaar aan te stel om die sterkpunte en behoeftes van die gesin te ontwikkel; om familielede te help om die verskillende rolle van die agentskappe wat betrokke is in die stelsel te verstaan, sowel as  hoe hulle die gesin kan beïnvloed en kan help in die identifiseringsproses en die optimale benutting van die dienste wat verskaf word.

‘n Gesinsadvokaat help Staats- en Plaaslike agentskappe en stelsels om sterker familie-gedrewe programme, standpunte en beleide aan te neem. Die fokus is om te voldoen aan die behoeftes van die families en enige minderjariges in die familie wat geestelike afwykings het, die voorkoms van afwykings, hetsy as gevolg van die misbruik van dwelmmiddels al dan nie, en om die omstandighede vir almal betrokke te verbeter – dit sluit familie, jeugdiges, en die agentskappe wat gebruik word in.

‘n Gesinsadvokaat het ook die outoriteit om, vry van enige kostes, Ouerskap-planne op te stel wat sal help te verseker dat daar ʼn stabiele en geskikte skedule, wat in die minderjarige se voordeel sal wees, tussen die twee ouers bestaan. ‘n Gesinsadvokaat kan egter nie voorsiening maak vir ‘n onderhoudsbedrag nie, aangesien dit onder die jurisdiksie van die onderhoudshof val. Indien ‘n ouer nie seker is van hul regte of verpligtinge teenoor hul minderjarige kind nie, kan die Gesinsadvokaat ‘n vergadering tussen die twee partye reël om die regte en verantwoordelikhede tussen die twee partye te bemiddel. Daar is ook geen kostes aan die proses verbonde nie, maar as een van die partye nie die vergadering wil bywoon nie, kan die Gesinsadvokaat nie die party dagvaar om teenwoordig te wees nie.

Die Gesinsadvokaat is ‘n perfekte oplossing vir die ouers wat hul kind se beste belange op die hart dra en wat beoog om ‘n stabiele omgewing vir die kind te maak wanneer beide ouers nie meer saam is nie.

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies.

VINNIGE EGSKEIDINGS IN KAAPSTAD

VINNIGE EGSKEIDINGS IN KAAPSTAD

MHI_A4BEgskeidings kan baie hartverskeurend, duur en tydrowend wees wanneer partye nie op ‘n skikking kan ooreenkom nie.

Tog is alle hoop nie verlore nie. Baie jong paartjies kies om te trou in terme van ‘n huweliksvoorwaardekontrak (hierna verwys as “hvk”) waarin hulle hul eiendom verklaar, asook watter bates buite rekening gelaat moet word. As ‘n paartjie nie ‘n hvk geteken het voor hul getrou het nie, kan hulle steeds op ‘n skikkingsooreenkoms besluit teen die tyd wanneer hulle paadjies skei, en kan hulle dit op skrif stel. Hierdie skikking word ‘n Skikkingsakte genoem en vorm deel van die finale egskeidingsbevel.

‘n Skikkingsakte sit die voorwaardes uiteen in terme waarvan die partye kies om hul eiendom, wat hulle tydens hulle huwelik bekom het en steeds het, te verdeel. ‘n Skikkingsakte vervat ook bepalings rakende die onderhoud, kindersorg, mediese sorg en enige ander probleme wat kan ontstaan met betrekking tot hul minderjarige kinders. ‘n Skikkingsakte kan ‘n onbeperkte aantal kere verander word voor dit deur die Hof geëndosseer word, solank beide partye op die veranderinge ooreenkom. Sodra die partye so ‘n Skikkingsakte aangegaan het en die dagvaarding alreeds beteken is op die Verweerder, kan die partye binne ‘n week ‘n finale egskeidingsbevel bekom. Dit is belangrik om daarop te let dat waar minderjarige kinders betrokke is, dit eers deur die Gesinsadvokaat geëndosseer moet word ten einde te verseker dat die reëlings rakende die minderjarige kinders ooreenstem met die Kinderwet. Indien daar geen probleme is met die reëlings rakende die minderjarige kinders nie, sal die Gesinsadvokaat slegs sowat twee dae neem om dit af te handel.

‘n Egskeidingsbevel wat ‘n Skikkingsakte inkorporeer, kan in die Streekshof of Hooggeregshof verkry word. Die Kaapse Hooggeregshof het jurisdiksie oor die Wes-Kaap en is ‘n vinnige hof wanneer dit kom by die finalisering van ‘n egskeidingsaak. Die partye kan hul eie datum in die Kaapse Hooggeregshof kies, solank dit op ‘n hofdatum val, en al wat nodig is, is ‘n kennisgewing van ter rolle plasing. Hierdie kennisgewing dien as ‘n bespreking vir daardie datum en as kennis aan die Verweerder dat die saak op dié datum aangehoor sal word.

Een of albei party moet teenwoordig wees by die hof op die datum soos aangedui in die kennisgewing van ter tolle plasing. Dit word sterk aanbeveel dat die partye van ‘n advokaat gebruik maak om die proses so vinnig en pynvry as moontlik te maak.

‘n Egskeiding is nooit aangenaam nie, maar ‘n mens moet onthou dat dieselfde partye wat nou om ‘n egskeiding vra eens op ‘n tyd beloftes aan mekaar gemaak het om mekaar te versorg. Egskeidings hoef nie jare en baie trane te kos nie; dit kan vinnig en hoflik afgehandel word. Selfs al het die huwelik nie gehou nie, sal die herinneringe vir ewig bly.

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies.

FAST DIVORCES IN CAPE TOWN

FAST DIVORCES IN CAPE TOWN

MHI_A4BDivorces can be heartbreaking, painful, costly and time consuming when parties cannot reach a settlement between themselves.

However, all hope is not lost. Many young couples choose to get married in terms of an antenuptial contract, which states what each party declared to be excluded from the matrimonial estate and will remain each party’s exclusive property. If a couple does not have an antenuptial contract when they choose to go their separate ways, but already have a settlement in mind, whether it be with regard to property or children, they have the option of entering into a Consent Paper.

A Consent Paper states the terms on which the parties choose to divide their property or items that they have accrued over time. A Consent Paper should also deal with the maintenance, child care, medical care and any other issues that can arise with regards to minor children. A Consent Paper can be edited many times before it is endorsed by the Court, as long as both parties are in agreement. Once the parties are in agreement and summons has been served on the Defendant, the parties can obtain a final divorce order as soon as the following week. It is important to take note that where there are minor children involved, the Consent Paper must first be endorsed by the Family advocate in order to make sure that the arrangements regarding the care of such minor children are in line with the provisions of the Children’s Act. If there aren’t any issues with the arrangements as set out in the Consent Paper the Family advocate usually only takes about two days to endorse the Consent Paper.

A divorce order incorporating the Consent Paper may be obtained in the Regional Court or the High Court. The Cape Town High Court has jurisdiction over the Western Cape and is a speedy court when it comes to divorce matters that have been settled. The parties can choose their own divorce date in the Cape Town High Court provided that such date falls on a court date. This notice serves as booking for that date and as notice to the Defendant of such date.

One or both of the parties have to be present in court on the date as set out in the Notice of Set Down. However, it is advisable to use the services of an advocate in order to make the process as efficient and painfree as possible.

A divorce is never pleasant, but one should remember that once upon a time, the same parties that are asking for a divorce now, made promises to each other to take care of each other for better or for worse. Divorces don’t need to cost many years and tears, it can be finalised amicably and quickly. Even though the marriage itself was not meant to be, the memories will last forever.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

MAINTENANCE

MAINTENANCE

MHI_A2blWhat can you do to enforce a maintenance order against a person who is responsible for paying maintenance, but fails to do so or is paying too little?

When someone fails to pay maintenance in terms of a maintenance order you have the option of lodging a complaint against them with the Maintenance officer, stating that the person is legally liable to maintain, for example, yourself or your minor child(ren) and is not doing so. The Maintenance officer must investigate the complaint and may then institute an enquiry in a maintenance court. The Maintenance officer, not the complainant, decides whether to institute an enquiry.[1] In investigating a complaint about maintenance, the Maintenance officer may obtain statements or any relevant information pertaining to the payment of maintenance. An enquiry under the Maintenance Act is a procedure which empowers people to enforce their rights and those of their child(ren) at the State’s expense. During the course of a maintenance enquiry the parties usually come to an agreement and seek to withdraw the proceedings, or have the terms of the agreement made an order of court, which cannot be disregarded by the magistrate.[2] If the parties cannot come to an agreement the matter will be referred to the maintenance court.

Whenever a person against whom a maintenance order has been issued under the Act fails to make any payment in accordance with that order, the order is enforceable in respect of any amount that person has failed to pay, together with any interest:

  1. by execution against property;
  2. by the attachment of emoluments; or
  3. by the attachment of debt.

If a maintenance order made under the Act remains unsatisfied for a period of ten days from the day on which the amount became payable or the order was made, the person in whose favour the order was made may apply to the maintenance court in which the order was made:

  1. for authorisation of the issue of a warrant of execution,
  2. for an order for the attachment of emoluments or
  3. for an order for the attachment of debt.

The application must be accompanied by a copy of the maintenance order or other order in question and a statement under oath stating the amount that the person against whom the order was made has failed to pay.[3]

Subject to the defence that failure to make a payment in terms of a maintenance order is due to a lack of means, a person who fails to make a particular payment in accordance with a maintenance order is guilty of an offence and liable to conviction with a fine or imprisonment for a period not exceeding one year, or to imprisonment without the option of a fine.[4]

On the application of the public prosecutor and in addition to or instead of imposing a penalty, a court convicting any person of the offence of failing to make a payment in accordance with a maintenance order may grant an order for recovery from that person of the amount he or she has failed to pay, together with any interest.[5]

Your best option would be to approach the Maintenance officer in order to reconcile the outstanding amounts. Thereafter, if the person still fails to effect payment, you can approach an attorney to either proceed with execution of the order, if the person has sufficient movable or immovable property, or obtain an emolument order which will be served upon the employer of the person (ordering the employer to pay the maintenance), or you may approach the maintenance court for an order for the attachment of any debt accruing, then or in the future, to the person responsible for paying maintenance.

[1] The Maintenance Act 99 of 1998.
[2] Young v Young 1985(1) SA 782 (C).
[3] The Maintenance Act 99 of 1998.
[4] Ibid.
[5] Ibid.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.