If you've ever found yourself on the receiving end of unpaid maintenance – or you know someone who is – there's good news: South African courts are taking a hard line against maintenance offenders. A 2024 Bloemfontein High Court judgment makes it crystal clear that skipping out on maintenance can lead to hefty fines and even jail time.
In this post, we'll break down the key details of the case, why the court ruled so harshly, and how you can enforce your rights if an ex-spouse owes you money.
The Case of Unpaid Maintenance
- Parties: Mr. E (Respondent) and Ms. E (Applicant) were previously married and had two minor daughters. Their divorce was finalised on 02 May 2017, incorporating a settlement agreement.
- Maintenance Terms: Mr. E agreed to pay R4,000 per month, escalating each year in line with the Consumer Price Index (CPI). He also agreed to cover reasonable medical, dental, and educational expenses for the children.
- What Went Wrong: By July 2020, Mr. E allegedly owed over R200,000 in arrears. On top of this, he refused to pay a separate cost order of R16,945.85.
- Contempt Claim: Ms. E took the issue to court, accusing Mr. E of contempt for willfully ignoring a valid court order to pay maintenance.
Respondent's Arguments and the Court's Response
Mr. E did not deny being behind on payments. However, he claimed:
- Poverty: He stated he simply could not afford the agreed-upon amount.
- Maintenance Variation: He pointed out that he had applied to reduce his maintenance obligations back in January 2021.
But the court noted that it took him three years from the divorce date to seek any official variation. This delay, combined with the large arrears, suggested to the judge that his actions were not just due to financial hardship—they were mala fide (in bad faith) and willful.
A serious consequence for Maintenance Offenders
The Bloemfontein High Court showed no mercy: The judge declared Mr. E in contempt; he was ordered to pay a R50,000 fine within 90 days; and he was sentenced to 6 months in prison, suspended for 3 years – meaning if he continues to default, jail time is on the table.
The court was crystal clear: Maintenance orders are not optional. They are in place to protect the best interests of the children, and flouting them undermines the authority of the courts and the well-being of minors.
Why the Courts are so strict
Children have a right to be supported by both parents. When one parent fails to comply with a valid maintenance order, the child's welfare is jeopardised. This judgment underscores that our legal system will fiercely protect children's rights – and will penalise anyone who tries to avoid their responsibilities.
Enforcing your Maintenance Order
If you have an ex-partner who is not paying maintenance as per a settlement agreement or court order, you don't have to tolerate it. You have options:
- File a Contempt Application: Like Ms. E, you can approach the court if you believe your ex is willfully ignoring a maintenance order.
- Criminal Charges: Under certain circumstances, non-payment of maintenance can lead to criminal prosecution.
- Maintenance Court Variation: If your ex claims they can't afford the payment, they should apply for a variation order as soon as their financial situation changes – waiting too long can signal bad faith.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
