With the festivities underway, some forget to budget for their obligation towards their children or for those who have an enforceable right to maintenance. With January fast approaching, it is generally seen as a difficult month for a lot of people. For those who fail to pay maintenance; here is some interesting considerations.
Section 31 of the Maintenance Act 99 of 1998
“Subject to the provisions of subsection (2), any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year or to such imprisonment without the option of a fine.”
Yes, you can be criminally charged if you fail to pay maintenance in terms of a maintenance order.
What are some of the civil ramifications of a failure to pay?
Not only can you be criminally charged, but In terms of section 11(a) of the Prescription Act 68 of 1969 (“the Prescription Act”) which states inter alia:
Periods of prescription of debts.—The periods of prescription of debts shall be the following:
(a) thirty years in respect of—
(i) any debt secured by mortgage bond;
(ii) any judgment debt;
This means that a maintenance order is considered a judgement debt for purposes of the Prescription Act as confirmed by our division in S A v J A and Others (7531/2020) [2020] ZAWCHC 155. Practically this means, if a person who is liable to pay maintenance in terms of a court order fails to do so, that person can be sued for the arrear maintenance at any stage within 30 years from the date on which the maintenance became due and payable in terms of a court order.
Conclusion
Very important, there are some exceptions, for example where a divorce order contains a maintenance clause – come speak to us for a full discussion. Lastly, Maintenance orders fall squarely within the same category as a judgement debt – it is therefore imperative that you comply with your maintenance order or if you are unable to, come speak to us.
