Sowetan

How to get maintenanc­e for a child from a pension fund

Court can grant an attachment of debt

- Andrew Mothibi Mothibi is Liberty Corporate’s legal manager. This feature was brought to you by Liberty. For further informatio­n contact Liberty on 011-408-2999 or LC.CONTACT@liberty.co.za

Money in a retirement fund is protected by law from any form of attachment by order of court, but there are exceptions.

The Maintenanc­e Act and the Pension Funds Act allow you to claim maintenanc­e from the pension fund of the person owing maintenanc­e.

If you go to court to claim maintenanc­e from a person who has a legal duty to support you, or on behalf of a child, the court may order that person to pay maintenanc­e as may be decided by the court.

The first maintenanc­e order normally operates directly against the person owing maintenanc­e.

This would be in his or her personal capacity and no third party would be required to do anything. If the person fails to pay the money on the dates set out then you can go back to court and ask to enforce the order that was granted.

Depending on the circumstan­ces, this can be done in any of the following ways:

Emoluments attachment order

This is often referred to as a garnishee order. Once the court is satisfied the person ordered to pay maintenanc­e has failed to do so, it may grant another order directing the person’s employer to deduct the money directly from their salary or wages.

The employer will have to do this before paying the employee. If the employer fails to deduct the money and pay it over as directed then the employer will be personally liable for the unpaid maintenanc­e money. The emoluments attachment order carries a specific provision that the employer must notify the maintenanc­e officer at the court should the employee’s employment be terminated.

Warrant of execution

Once issued by the court, it authorises the sheriff of the court to go to the place where the person owing maintenanc­e stays and to attach property the sheriff can sell to get the unpaid maintenanc­e money.

Attachment of debt

This is normally granted by a court after the above options have been exhausted. As soon as the employer notifies the court that the person has resigned, the maintenanc­e investigat­or will source more informatio­n. This will be around whether there is a pension fund in place and the pension fund administra­tor will be served with a subpoena to release informatio­n such as the value of the fund benefit due.

If the court becomes aware of the existence of a fund benefit being due to the person owing maintenanc­e then it will order that the maintenanc­e money be deducted from such fund benefit. The court order will have to:

Identify the person owing maintenanc­e and the fund in the order;

Set out the amount that the pension fund is being directed to deduct from the member's benefit; and

Set out the bank account details into which the maintenanc­e money has to be paid.

In the case of a maintenanc­e order, unlike divorce orders, there is no need for the pension fund member to be an active member on the date the order is granted. So, the fund can pay the maintenanc­e money even where the person could have long left the employer’s service, as long as the money is still held in the fund.

 ?? / ISTOCK ?? If maintenanc­e is not paid, you can go back to court.
/ ISTOCK If maintenanc­e is not paid, you can go back to court.
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