How do I claim maintenance?
My ex and I divorced in 2013. He kept everything. I kept the child and he was meant to pay maintenance, which has not happened. How do I find out if he’s still working and can I claim from him if he is unemployed?
Kristy Giva Knill, director at McLoughlin Clark Attorneys, replies:
In this case, there is already an existing maintenance order in place and your ex-husband has failed to comply with it. You must apply to the maintenance court in the area where your ex-husband is resident for:
Authorisation to issue a warrant of execution against your ex-husband; or
A so-called garnishee order (deducting money from your ex-husband’s salary).
The clerk of the maintenance court will assist you in completing the necessary forms and advising you of what supporting documentation you will require.
It is imperative that you know the whereabouts of your ex-husband before approaching the court, so the sheriff can serve the necessary documentation upon him. You do not need to know whether he is currently employed. The court will determine this when he appears before the magistrate.
If your ex-husband is unemployed, the magistrate will postpone the case, allowing him an opportunity to seek work. Remember, even if your ex-husband is unemployed, but he owns assets (such as a motor vehicle or furniture), the court will order him to sell these assets to comply with his maintenance obligations.
Nonpayment of maintenance is a criminal offence and the defaulter can be fined or even imprisoned for up to one year, or both. The maintenance officer may also order that the defaulter be blacklisted.
To avoid such action, the defaulter must show to the satisfaction of the court that he could not pay maintenance because of a lack of money or income.