Article by Umhlanga Divorce Attorney. Fawzia Khan
Krugersdorp Magistrates Court issued what is arguably one of the sternest judgements in a maintenance criminal court, to a father who failed to pay maintenance to his children and former wife. A person who fails to abide by a maintenance order would be found guilty of a criminal office and be subject to fine or imprisonment. Sometimes having the person imprisoned will result in the dependents facing more hardship as the defaulter would be unable to generate the income.
The Maintenance Amendment Act allows for parents who default on their maintenance order to be blacklisted at credit bureaus, have interest added to their maintenance arrears, or have their property or salary attached. If the parent who is liable for maintenance cannot be located or contacted, the court has the power to authorise that parent’s cellphone service provider to provide the court with their contact details.
Apart from ordering the defaulter to pay the arrear maintenance due, the courts can impose fines, sentence a maintenance defaulter to imprisonment or issue a suspended sentence, (which is also considered to act as a deterrent).
In July 2021, the court sentenced the man to imprisonment for six years 18 months of which was suspended, so effectively it sentenced him to four and half years for contravening the Maintenance Act. The man, a director of a successful food franchise business which did an annual turnover of R9-million, owed his ex-wife approximately R1.4 million in arrear maintenance. In terms of their divorce settlement he was to pay R24 000,00 per month for five years as rehabilitative maintenance to his ex-wife and R10 000 a month for the children. He stopped paying the maintenance after three months claiming that he could no longer afford to.
If a person is unable to pay any maintenance order due to lack of means, he or she needs to produce compelling proof to justify why the maintenance order they cannot abide the court order. The court heard that he subjected his children to poverty whilst he lived a life of luxury. He told the court that business was doing badly and that his fiancé purchased the business, paid off his loans and that he now earned a salary of R25 000 as an employee of the business. The court said it considered the sale of the business to the man’s fiancé for no value, to be merely a “smokescreen for him to live a luxurious life‚ while forcing his ex-wife and children into poverty”. The man’s legal team indicated that they would be taking the decision on appeal.
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