When a former spouse stops paying maintenance, months can quickly turn into years of unanswered invoices and growing arrears. In a recent Barnard matter, the maintenance debt stretches back to 2015 and now exceeds R1 million. Fortunately, South Africa’s Maintenance Act 99 of 1998 provides clear, practical mechanisms for enforcing an existing order and securing the support children are entitled to receive.
Section 26 – The Enforcement Options
Section 26 lists three remedies the court may authorise – individually or together – once non-payment is proven:
- • Warrant of execution – the sheriff attaches and sells movable or immovable property to cover the debt.
- • Emoluments attachment order (EAO) – the court orders the debtor’s employer to deduct a fixed amount from monthly earnings.
- • Debt attachment order – funds owed to the defaulter by a third party (for example, a customer or a bank) are redirected to you.
Because every case has its own plot twists, the court may authorise one or more of these options simultaneously. In high-value arrears matters, an EAO often offers the quickest route to steady instalments while other assets are identified and sold.
Section 28 – The Payroll Plot Device
Section 28 zooms in on EAOs. Once the court authorises an attachment:
- 1. Service on the employer – The clerk of the maintenance court serves the order on the debtor’s HR or payroll department.
- 2. Statutory ceiling – Deductions cannot reduce take-home pay below the basic amount needed for the debtor’s own and any new dependants’ reasonable living expenses.
- 3. Automatic compliance – The employer must start deductions on the next payday and forward the money to the designated beneficiary or maintenance court. Failure to do so is a criminal offence.
Employers occasionally query whether they may delay execution while “negotiations” continue. The short answer is no: once served, they are bound to comply unless the order is formally suspended or varied by a court.
Building a Case the Court Can’t Ignore
Even the strongest case needs solid evidence. For a maintenance enforcement application you should assemble, in certified form:
- • Divorce order and settlement agreement – showing the original maintenance obligation.
- • Applicant’s ID and minor child’s birth certificate – confirming the parties’ identities.
- • Proof of address – required by most clerks for record-keeping.
- • Bank statements and other proof of non-payment – each month of default must be demonstrable.
- • Supporting expense records – medical aid statements, school and extramural invoices substantiate the child’s ongoing needs.
- • Foundational affidavit – a clear narrative explaining the arrears, steps taken to recover them, and why the chosen enforcement route is appropriate.
Where arrears stretch back years, meticulous paperwork is essential. You are effectively re-opening a long-running series for the court’s review; unexplained gaps or undocumented payments invite costly delays.
Practical Tips for Parents
- • Act promptly. Arrears snowball rapidly once interest and penalty provisions in the divorce order kick in.
- • Keep a running ledger. Maintain a simple spreadsheet or banking app tags that match each expected payment to the amount received. Courts appreciate clarity.
- • Update addresses. EAOs fail if the debtor has moved jobs or the employer’s details are wrong. Tracing should start the moment a payment is skipped.
- • Expect variation defences. Debtors often argue their circumstances have changed. Provide current budgets and proof that the order remains fair.
- • Consider contempt. Where wilful default persists after an EAO, a contempt application may deliver a sharper jolt than purely civil remedies.
A million-rand maintenance backlog is daunting, but the law is squarely on the side of children left without support. By harnessing Sections 26 and 28 and presenting airtight evidence, parents can convert unpaid promises into reliable monthly inflows – and finally bring the arrears saga to an end.
Next Steps
If you are grappling with late or missing maintenance, Isabel van den Ende and Aaliyah Razak at Barnard can prepare and lodge the required application, pursue attachment orders, and monitor compliance.
Email isabel@barnardinc.co.za to arrange a consultation and start the recovery process.
Every child deserves consistent support – let us help you secure it.
