Maintenance: To pay or not to pay

The long awaited amendments to the Maintenance Act No. 99 of 1998, has officially been signed off by the President on 9 September 2015. The aim of the new Maintenance Amendment Act No.9 of 2015 is to improve the maintenance system in the following ways:

  • to regulate the lodging of complaints relating to maintenance and the jurisdiction of the maintenance courts;
  • to regulate the investigation of maintenance complaints;
  • to regulate the securing of witness for purposes of maintenance enquiries;
  • to regulate maintenance enquiries in order to provide for the granting of interim maintenance orders;
  • to regulate the circumstances in which maintenance orders may be granted by default;
  • the regulation of cost orders;
  • to regulate the effects of maintenance orders granted by a maintenance court, as opposed to maintenance orders granted by other courts;
  • regulation of the transfer of maintenance orders;
  • regulating the reporting of a maintenance defaulter to any business which has its object of the granting of credit or is involved in the credit rating of persons;
  • to regulate the attachment of emoluments;
  • to increase the penalties for certain offence;
  • to create new offences;
  • to regulate the conversion of criminal proceedings into maintenance enquiries.

Section 11 of the Maintenance Amendment Act No.9 of 2015 has recently made a few waves in the legal fraternity and has resulted in many legal practitioners jumping for joy with the new provision which has amended Section 26 of the Maintenance Act.

Section 26 of the Act provides for the enforcement of maintenance and other orders. While the failure to pay maintenance is comparable with a default judgment in a civil case, the same mechanisms which are designed to prevent the defaulter from continuing to obtain credit, while owing maintenance, was not extended to maintenance defaulters. Section 11 of the Maintenance Amendment Act proposed to insert a new provision within Section 26 of the Maintenance Act so that when a court grants an application which is referred to in section 26(2) of the Act, because an individual has defaulted on his/her maintenance obligations, his/her personal details must be submitted to a business which has as its main objective the granting of credit or is involved in credit ratings of persons. The goal is ultimately to prevent maintenance defaulters from continuing to receive credit while they still owe maintenance.

Due to its novelty in our legal system, this new amendment still needs to find its footing in practice.

Although this amendment seems to address much needed frustration in maintenance disputes, and will definitely encourage the defaulter to think twice before defaulting on a maintenance order, further developments and refinements to ensure the practicality of this amendment is anticipated.

Samantha Wonfor