Can you challenge maintenance when you’re in arrears?

The duty to maintain a child is of utmost importance. But what happens when your financial circumstances change, causing you to fall behind on maintenance payments? Can you challenge the maintenance order in such a situation?

The Preamble to the Maintenance Act, 99 of 1998 (“Maintenance Act”) recognises the rights of a child but also emphasises the importance of a sensitive and fair approach to the determination and recovery of maintenance. 

Maintenance orders awarded are largely based on the duty of parents to support their children. There are mainly three types of maintenance orders:

1. An order granted by the court after the parties put their financial positions as well as the needs of the child(ren) before the court. 
2. An order by consent where the Respondent consents that the application for maintenance is made an order of the court.
3. An order by default where a Respondent fails to object to an application for maintenance.

In recent times, there has been a growing influx of Respondents approaching the maintenance courts where their financial situation simply does not allow them to continue to pay maintenance in accordance with the applicable maintenance order. Such Respondents then approach a court in terms of section 19 of the Maintenance Act to apply for the variation or setting aside of a maintenance order. 

Unfortunately, in many cases, Respondents wait to apply for a variation or setting aside their maintenance order when they have already fallen in arrears with their maintenance. 

From the 2018 Constitutional Court judgment of S S v V V S 2018 (6) BCLR 671 (CC), a Respondent cannot bring such an application when in arrears. In terms of section 6(2) of the Maintenance Act, a Maintenance Officer must investigate every complaint, and should that reveal that a Respondent is in fact in arrears, the Maintenance Officer must reject the request for variation or discharge and provide the Respondent with reasons therefore based on the decision in S S v V V S. The only notable exception to this rule is where a Respondent is able provide proof that he/she was not aware of the application and/or the order and is therefore not willfully in arrears. In such cases, the order may be substituted or discharged.


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Source: Seymore DuToit & Basson