To deal with a spouse who refuses to pay maintenance you would first need to inform the maintenance officer. The maintenance officer can apply to the court for:
- A warrant of execution;
- An attachment order against the defaulter’s salary;
- An order to attach any debts; and
- A criminal prosecution.
Does the non-paying parent have a defence?
The only defence that a parent could have for not paying maintenance is having a lack of income. However, if the parent is unwilling to work, such as laziness, then this will not count as a defence. Failure to pay maintenance is taken very serious, guilty parents won’t get much sympathy from the court or others. If the parent is capable of working, then they will be expected to pay maintenance.
But I can’t find my ex-spouse?
Non-paying parents may think that they’re being clever by changing their address and not notifying the court. This is considered a criminal offence, and will result in punishment. Fortunately, it’s not the responsibility of the single parent to find anyone. A maintenance investigator will track down and find a non-paying parent.
How to claim maintenance
If you want someone to pay maintenance or believe that they are not paying the proper amount, then you can follow these steps at your local magistrate’s court. Remember to go the court in the district where you live.
- Go to the court and complete the form “Application for a maintenance order (J101)”.
- Also submit proof of your monthly income and expenses.
- A date will be set on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
- A maintenance officer and an investigator will investigate your claim and look into your circumstances.
- The court will serve a summons on the respondent.
- The respondent then has to either agree to pay the maintenance, or challenge the matter in court.
If found liable to pay maintenance
If the court finds someone liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how the payments must be made. There are several ways the payments could be made. The court can order that the maintenance be paid at the local magistrate’s office or that the amount to be paid into the bank account chosen by the person claiming. The payments could also just be made directing to them. According to the new Maintenance Act (1998), an employer can deduct payments from an employee’s salary, if they’re liable for paying maintenance.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)