Clamp down on child maintenance defaulters

The government and opposition party Democratic Alliance have joined forces to clamp down on parents refusing to pay maintenance. But what can you do in the interim if your partner doesn’t pay maintenance asks Angelique Ruzicka?


There are very few things that opposition party the Democratic Alliance (DA) and the ANC government would agree on, but this week the DA announced how it and government has worked together to come down hard on child maintenance defaulters and make them more accountable in law.


The DA explained that for the last six weeks it had been working closely with government agencies, departments, and the major credit bureaux to find a way to increase the pressure on parents to fulfill their financial responsibilities to their children.


The Department of Trade & Industry has this month gazetted affordability assessment guidelines and in it contains the potential consequences for errant parents who refuse to pay but can. The resulting penalties, if they come through, will be harsh on defaulters:


  • Maintenance defaults will stay on a person’s credit record for five years, or until the court rescinds the default judgment, whichever occurs sooner. [Section 17(1)(8)];
  • Maintenance payments will be included in all affordability assessments completed when applying for new loans. [23(A)(10)(c)]; and
  • Clients are required to declare if they have any maintenance default judgments [Section 3.7 of the new prescribed form].

Under credit amnesty rules, that came into effect from the 1 April this year, people who pay off their debt obligations will have all negative and adverse information wiped off their credit records – effectively giving their ‘financial reputation’ a clean slate.


However, with maintenance defaulters it will be different. Defaults will stay on parents’ credit records until they get it rescinded in court after paying their maintenance. This will make it hard for defaulters to carry on with normal financial activities such as applying for a loan or a bond.


“This is significant. It means that maintenance defaulters will now have their credit records impaired, for the first time. This will stop defaulters accessing new credit while ignoring their maintenance responsibilities,” says the DA adding that it encourages people to comment on the amended legislation.


Getting judgements rescinded at the courts will be a costly affair but DAShadow Minister of Trade and Industry Geordin Hill-Lewis MP feels this will serve as a disincentive. A copy of the new “affordability assessment” guidelines for the credit industry can be found here.


How will it work?

Changes to the law will make it easier for credit bureaux to list defaulting parents up on their systems. The format of maintenance judgments will be changed to ensure that the details of minors is not included, which will then enable these judgments to be uploaded to the credit bureaux.

The DA explains that the Department of Justice has already drafted a Bill to amend the Maintenance Act to make this a reality. “This Bill will go even further, enlisting the assistance of credit bureaux in tracking down defaulters who can’t be found. We are told the Bill will go before Cabinet within the next six weeks, and will be tabled thereafter,” says the party.


The enormity of the problem

The number of children raised without both parents is staggering. According to a report published by the South African Institute of Race Relations in 2011, an estimated 9 million children are growing up in South Africa in single parent households, the vast majority of those households headed by mothers. Almost half the children in South Africa (48%) are raised with only one parent.


This is an issue that every South African should be concerned about. The DA says it would like to see all parents voluntarily and mutually committing to take financial responsibility for their children after a break up. “This is much better for parent and child alike. However, there are still far too many parents who don’t think like that,” says the party.


It adds: “Raising children as a single parent is difficult enough, but doing so without any financial support from the other parent has devastating consequences for the children, and for society. Research by the OECD’s Development Centre has shown that divorce is one of the main reasons that middle-class families’ fall back into poverty in developing countries.”


Hill-Lewis says that the majority of defaulters were fathers but admitted that mothers were also at fault for not paying maintenance. DA Women’s Network (DAWN) Leader Denise Robinson MP and DA Shadow Deputy Minister of Women adds: “A lot of mothers don’t know what to do. We want to see a South Africa where parents agree together on what they should pay.”


What can you do if your partner doesn’t pay?


If you are struggling to get your partner to pay you can get lawyers involved but there are also a number of organisations, particularly non-governmental organisations (NGOs) that you can turn to for help first. They advocate mediation first before getting the lawyers to step in.


“I certainly do not tell people to rush to a lawyer. Quite the contrary,” says Nadia Thonnard, parenting mediator for the South African Divorce Support Association. “My approach is holistic and I firmly believe that anyone who seeks emotional support before anything else is much better off with their decision making afterwards. Money, like children, can be used as a way to get back at the ex, out of anger and spite.


“When divorcing parents engage in my co-parenting process, they are made to face their emotions, how to deal and grow from them and mostly what it means to be responsible for their children. They are then ready to mediate their divorce and benefit from a win win situation. An attorney will seldom reach this. They tend to feed on the conflict.


“In some cases also, if the one parent is not willing/able to pay maintenance, it is worth focusing the energy of fighting that parent into getting yourself sorted and get a better job to provide for the children instead of remaining a victim of their circumstances.”


Here are a list of just some organisations that you can contact:


The South African Divorce Support Association: SADSA is a counselling, coaching, support and family mediation practice for people contemplating, undergoing or having gone through separation/divorce.


The South African Association of Mediators: This is a non-profit organisation involved in family mediation through education, training and facilitation of family related matters.


Fathers 4 Justice: This is a civil rights group campaigning for truth, justice and equality in Family Law for children, their parents and grandparents.


The Law Society: If you need legal help or advice contact the Law Society. They also have information about how to get legal aid.


The Department of Justice: This governmental department also has information on how you can get legal aid and has links to other vital government departments.