Good News for Maintenance Claims!

Heads up: in case you have not noticed, the Maintenance Act 1998 has undergone a magnificent revamp. At least someone has heard our cries! As of 9 September 2015, the below amendments became law. It is not a complete makeover but it is at least a rather good start. Here is a brief summary of its benefits:

A: INTERIM MAINTENANCE ORDERS

The Maintenance Act currently makes no provision for interim Orders i.e. Maintenance Orders which are payable whilst the matter is still in Court and before final judgment is made by a Magistrate. This became a royal pain in the backside because often the primary caregivers fight tooth and nail to get Maintenance out of the other party. Now, even if that party chooses to put up a barricade of excuses as to why he / she / they cannot pay the requested Maintenance, at least your little ones will be looked after in between. Previously, under the repealed Act, interim Orders were permissible. For some unknown and bizarre reason, they were done away with in the Maintenance Act of 1998. Legislators have now realised the errors of their ways and reverted back to the older scheme.

B: RECOGNITION OF INFORMAL AGREEMENTS

Previously, the Maintenance Act made no provision for a parent to enforce or apply for Maintenance in terms of Maintenance agreements which were not made Orders of Court. Now, even if the parents or family members enter into a written or verbal agreement, either party may apply to Court for the same to be increased or decreased as the case may be.

C: GREATER AMPLIFICATION OF JURISDICTIONS

Maintenance proceedings may only be instituted in the area where the person seeking Maintenance resides. If you are the caregiver of a minor, the jurisdiction follows where that caregiver resides. If it is a spouse or ex-spouse claiming Maintenance for himself or herself, jurisdiction follows where that spouse who is seeking Maintenance resides. Now, jurisdictional areas include where that person works or carries on business.

D: LOCATING THE SOURCE

It often happens that caregivers or spouses (as the case may be) cannot find the person against whom Maintenance is being sought. This new amendment has far-reaching consequences which would enable a Maintenance officer to make a request to the Court that electronic communications service providers be Ordered to submit details of this person to the Maintenance Court. Likewise, there are far-reaching consequences of failing to comply with a direction made by the Court.

E: EXPEDITING TRIALS

The trial process is usually what deters potential Applicants from approaching the Maintenance Court in the first place because of horror stories being told of how long it takes to become finalised. Yes, it is true that different Courts have different processes even though it is one Act that applies to all Courts. However, it is a reality that we all contend with on a daily basis. The amendments give hope to potential Applicants because it is now a duty on all officers of the Court to resolve each matter "as speedily as possible" and also limiting postponements for the shortest time and only if absolutely necessary. It is now incumbent on the person who is seeking a postponement to satisfy the Court as to why the trial cannot proceed on any given day. Therefore, the requirements are stricter and more onerous on a person seeking a postponement for whatever reason at the trial stage.

F: ABSENCE OF PARTIES INVOLVED

Parties to an enquiry are able to come to agreement on the terms of the Maintenance Order. They would have to fill out a “Consent to Maintenance” Form, sign it and submit it to Court for consideration. During this process, both parties would have to be at Court. Getting around this was troublesome on the party against whom Maintenance was sought. Now, it is possible to have this Consent to Maintenance made an Order of Court without physically attending Court. This alleviates the burden of having to attend Court for a formality where it is inconvenient for the parties to do so e.g.  where the parent against whom Maintenance is sought resides in another province / country / more than 100 kms from the Court.

G: EASE OF DEFAULT ORDERS

Default Orders are obtainable in circumstances where a party to the proceedings fails to attend Court after being warned to appear and being subpoenaed to Court. The problem came in when having to convince the Court that enough has been done by the Applicant and the Maintenance Officer to bring him or her to Court. Now, the provisions are less onerous on the complying party when making a request for a Default Order.

H: BLACKLISTING OF MAINTENANCE DEFAULTERS (my personal favourite)

If the person who is liable to pay Maintenance fails to obey the Court Order, relief was obtainable by the other party. Provisions exist in the Act to allow for enforcing the Maintenance Order in circumstances where the Court ordered a third party to pay the Maintenance due on behalf of the Maintenance Defaulter. However, when it came to Garnishee Orders, the Defaulter had little motivation to obey the Order in future which means the person in whose favour the Order was granted would have to keep running to Court to obtain relief. Now, if an application is brought to the Court to enforce the Maintenance Order against the other party, that person’s details are sent to the credit bureau for the default to be recorded adversely against his or her name. That being said, the provisions relating to obtaining Garnishee Orders have also been amended to make it easier to apply for this Order especially where the Complainant has unsuccessfully attempted to attach the other person’s property.

I: INCREASE OF PUNISHMENT

Previously, if someone was charged and convicted of Failing to Comply with a Maintenance Order, the maximum sentence he or she could get was one year. Now, the Amendment allows for a maximum of three years’ imprisonment. The degree of sentencing is left solely in the hands of the Magistrate and it is up to the Prosecutor to motivate the punishment sought especially in circumstances where it is more beneficial for a Complainant to receive monthly Maintenance. Other increases are as follows:
-          If you are found to be in Contempt of Court (i.e. wilfully disrupting the Maintenance proceedings), the potential imprisonment has been increased from six months to one year.
-          If a Garnishor (i.e. the third party who is ordered to pay Maintenance on behalf of the Defaulter) fails to obey the Court Order, the potential imprisonment was six months if found guilty but has now been increased to two years. This is particularly useful for recalcitrant employers!
-          If the person against whom a Maintenance Order has been made fails to send out the requisite notice of change of his employment and residential address, and should he or she be found guilty, he or she was liable to imprisonment of up to six months but this has now been increased to one year.
-          If any person hinders investigations made by the Maintenance Investigator, the potential imprisonment has been set at two years (this is a new addition to the Act).

J: EASE OF CONVERSION OF PROCEEDINGS

Previously, if a Complainant lodged a complaint to the Maintenance Court for criminal proceedings to be instituted against the Defaulter, the Prosecutor had sole discretion as to whether or not those proceedings should be converted to a Maintenance enquiry. This usually happens where there was proof (on the face of it) that the Defaulter’s financial circumstances had changed (which is a defence that a Defaulter can raise as to why Maintenance was not paid sufficiently or at all). The reason why this exists is because of the two opposite “evidentiary scales” which lie against both. For criminal proceedings, the scale is significantly higher than for a maintenance enquiry. If it is converted, the Prosecutor becomes the Maintenance Officer and the same rules that apply to an application will apply to a converted process.

K: COSTS ORDERS

Previously, the only costs that could be claimed in a Maintenance Court were those for service by the Sheriff. However, the amendment allows the maintenance officer to request the maintenance court (on behalf of the complainant) that an order be made to assist him/her with the costs of retrieving information from the communications service providers.


CONCLUSION

All in all, the aforementioned Amendments (as well as others not mentioned) are wholly beneficial and fair to all persons who were affected by the Maintenance Act. The aim of the amendment was to allow for speedy relief and to avoid any wilful attempts to thwart the process especially where the Maintenance is sought for the benefit of children.

Comments

Post a Comment

Popular posts from this blog

Breather for Creditors; Beware for Debtors

Commercial debtors and creditors (veteran and inexperienced) are generally aware of the Golden Rule when it comes to debt collection. It is a very old yet deadly rule; it would appear, however, that creditors and debtors alike appear to have limited understanding of this rule in the practical sphere. The Golden Rule : As a general rule, Section 11(d) of the Prescription Act, 68 of 1969 declares that if a debt is owed by person A ( the debtor ) to person B ( the creditor ), and unless person A is a State entity, person B is granted a period of three years from due date to claim the debt from person A in a Court of competent jurisdiction before the debt shall be deemed to have become legally extinguished. It is essential that creditors and debtors alike are aware of this Rule. For the creditor, it indicates the time allowed to enforce its rights to claim the said amount from the debtor. For the Debtor, it indicates whether or not there is a valid defence against a debt wh...
Read more

Can the Hague Convention help me see my child?

The ever-present problem of child abduction persists in many countries. “Abductions” has a wide meaning in terms of Child Law to include keeping a child away in another country from a parent who has rights to see his/her child. South Africa became a signatory to the Hague Convention on the Civil Aspects of International Child Abduction on 1 October 1997 (“the Convention”). Prior to the Convention, even if a parent had a court-ordered right to a child, it was exceptionally difficult to enforce that right outside of the Country which granted the order, being it of ‘access’ or ‘custody.’ The major limitation with respect to the Convention is that it is only applicable to countries who are signatories to it and whom therefore have an obligation to ratify the Convention into its own law. These countries are called “Contracting States.” This means that each country that agreed to abide by the Convention must create its own ‘local’ laws to give effect to the Convention, so that their o...
Read more

How Does She Do It?

Many people ask me how I handle family cases on a daily basis and am still sane enough to label it as one of my specialisations. Here is the secret to my sanity. Naturally, what I do is fraught with emotions, from start to finish. There is not a single case that I have dealt with that does not have an element of emotions involved. Learning how to deal with these " third-party emotions " is part of the tricks of our trade. Some attorneys do it well, others do not. Even Judges have been known to "descend into the arena" from time to time! It is not only third-party emotions that we need to manage; we also have emotional triggers within ourselves that find themselves erupting at inopportune or unnecessary times. But is it not true that every occupation has a certain element of emotion? How people react to stress, for example, exhibits emotions that other people are often tasked with managing. So how do they do it? I believe that the key to handling emot...
Read more