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Maintenance

Psychological studies have ranked divorce as a more stressful life event than even the death of a close family member, or being in jail.1

Maintenance also has a part to play in the emotional turmoil that burdens both parties upon their marital collapse. Not being the breadwinner, possible destitution may well loom large in the fragile moments. For the breadwinner, the obligation to pay maintenance maintains a very real link in circumstances where resent can easily flourish.

Of no less significance is the plight of children in a broken marriage. The Maintenance Act 1998 proceeds on the premise that the poor rate of recovery of maintenance in South Africa might mean that we fall short of our obligations in terms of the international Convention on the Rights of the Child, because insufficient is done to give high priority to the survival, protection and development of children, including in the divorce scenario.

The Maintenance Act is administered by the Minister of Justice. It makes provision for maintenance courts, the investigation by maintenance officers of complaints, enquiries, and enforcement .

A. Maintenance orders

  1. A ‘maintenance order’ is an order issued by any court in the Republic, for the payment (including periodically) of sums of money towards someone’s maintenance. Any person who fails to make any particular payment in accordance with a maintenance order commits a criminal offence.2 3

  2. If, after the maintenance order has been served on you, for any reason you become relieved (discharged) of the obligations to pay any such sums of money, within 7 days you must notify the maintenance officer. It is a crime to fail to do this.4

B. Maintenance enquiries and investigators

  1. At the request of a maintenance officer, a magistrate can call for the appearance before him of any person who is likely to give relevant information concerning someone who is (even allegedly) legally liable to maintain another person. It is an offence for any such person to:5
    • fail to attend such an enquiry;6
    • not remain in attendance until the hearing adjourns;7
    • refuse to be sworn in (or affirmed) as a witness;8
    • refuse to answer any question put to him;9
    • fail to produce any document required;10 and
    • give false information.11

  2. The same applies to any person subpoenaed by a maintenance officer as a witness for the purposes of an enquiry in the maintenance court.12

  3. The same applies to any person subpoenaed by the maintenance court, and even any person present at the enquiry who is examined by the court.13

  4. Any person who interrupts the proceedings at a maintenance enquiry, or hinders or obstructs the maintenance court, commits an offence.14

  5. Evidence can be given for purposes of enquiries and investigations by a maintenance officer in the form of a written statement. It is a crime wilfully to state anything false in such a statement.15

  6. The same applies if you verbally supply false information to a maintenance officer or maintenance investigator.16

  7. It is a crime to hinder or obstruct a maintenance investigator in the exercise of his powers or the performance of his duties.17

  8. Any person18 who has not been appointed as a maintenance investigator commits an offence if:
    • he performs any function entrusted to a maintenance investigator under any law; or
    • pretends to be, or makes use of any name, title or description creating the impression that he is a maintenance investigator, or is recognised by law as such.19

C. Publication and disclosure

  1. It is a criminal offence to publish, in any way, the following in respect of any person under the age of 18 years who is or was involved in any proceedings at a maintenance enquiry:20
    • his name;
    • address;
    • school;
    • any information likely to reveal his identity.
  2. If any person discloses information which he acquired during the performance of his duties under the Act, he commits an offence.21

D. Supplementary maintenance orders

  1. As pointed out, any court can make an order for the payment of sums of money towards the maintenance of any person. That order can be supplemented, by an order against any company, pension fund, etc. (which is obliged to pay money on a periodical basis to the person who must pay the maintenance) to make the maintenance payments on his behalf. It is an offence for the company, pension fund, etc. not to comply with such an order.22

  2. The same can apply to an employer of the person ordered to make maintenance payments.23

  3. If the person in question leaves that employment, the employer must notify the maintenance officer within 7 days. It is a criminal offence to fail to do so.24

  4. The court can also order that any debts which are owed to the person (ordered to make maintenance payments) be attached in order to cover the amount he has failed to pay. The debtor commits a criminal offence if he fails to discharge this obligation.25

  5. If a person who is ordered by the court to pay maintenance changes his place of residence, or his employment, he must notify the maintenance officer within 7 days. It is an offence to fail to do so.26

  1. Tashiro, Frazier, Berman ‘Personal Growth Following Stressful Life Events’ reported in Handbook of Divorce and Relationship Resolution edited by Mark A Fine and John H Harvey (Taylor & Francis) 2006. ↩

  2. It may be a defence that he was unable to pay the maintenance due to lack of means. However, this will not apply if the failure to pay maintenance was due to his unwillingness to work, or misconduct. ↩

  3. Section 31(1); section 38(a). ↩

  4. Section 38(b) read with section 16(3)(b). ↩

  5. Section 8(1). ↩

  6. Section 32(1) read with section 8 and section 188(1). ↩

  7. Section 32(1) read with section 8 and section 188(1). ↩

  8. Section 32(1) read with section 8 and section 189. ↩

  9. Section 32(1) read with section 8 and section 189. ↩

  10. Section 32(1) read with section 8 and section 189. ↩

  11. Section 32(1) read with section 8 and section 164(2). ↩

  12. Section 33 read with section 9 and section 188 and 189. ↩

  13. Section 33 read with Section 10(1) read with section 188 and 189. ↩

  14. Section 35. ↩

  15. Section 34(1). ↩

  16. Section 34(2). ↩

  17. Section 39A(1). ↩

  18. Other than a clerk of the court who is requested to assist a maintenance investigator in the performance of his functions. ↩

  19. Section 39A(2). ↩

  20. Section 36(1) read with section 36(2). ↩

  21. Section 37. ↩

  22. Section 38 read with section 16(3)(a) and section 16(2). ↩

  23. Section 38(a) read with section 29(1). ↩

  24. Section 38(b) read with section 29(2). ↩

  25. Section 38(a) read with section 30(1). ↩

  26. Section 39 read with section 16(4). ↩

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