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Maintenance “emolument” attachment

One of the points which comes up very frequently in divorce and maintenance matters relates to how the maintenance should be paid. There are a few means of payment. It can be in cash, paid into a bank account or be deducted from a person’s salary by way of a so called “emolument attachment order”.

The unsafest way of paying maintenance is by way of handing cash notes over to the person receiving the maintenance. Unless you receive a proper receipt, this form of payment is risky, as the recipient of the maintenance may deny at a later stage having received all of the money.

The most common maintenance payment method I would say is payment directly into the other party’s bank account. The divorce order would state that the one party must inform the other of the bank account details and keep that other party notified of any change in account details. One further advantage of this form of payment over a cash payment is that the parties do not physically have to see each other.

One of the easiest ways of paying maintenance is by means of a so-called “emolument attachment order”. This would involve the monthly payment of maintenance being deducted from a salary and being paid directly into the recipient’s bank account. This is similar to a debit order being placed on a person’s salary. This form of payment would no doubt be the first prize for the recipient of the maintenance, as the work would be involved in ensuring that the person who has to pay does in fact pay.

It is important these days for attorneys to ensure that proper arrangements are made when it comes to maintenance payments in divorce orders. In 2009/10 alone the salary of more than 30 000 South African parents, mostly fathers, were attached after they failed to pay maintenance for their children.

According to statistics more than half of the maintenance applications received in 2009/2010 were not finalised. The use of civil enforcement remedies, including emolument attachment orders of salaries, doubled in the past two years.

In 2009/2010 there were 200 786 new maintenance applications received. Of these applications, 65 476 resulted in orders made or warrants issued. This means that in 135 310 maintenance applications (67, 4% percent), no relief was granted.

Non-payment of maintenance prejudices mostly women, who quite often are the ones looking after the children. In the event of non-payment they do however have the right to lodge a complaint against the defaulting party, who may be faced with criminal charges.

I personally am very much in favour of the “emolument attachment order”. There are so many maintenance cases today and so many defaulting parties these days. The direct involvement of the employer in paying the maintenance on behalf of his/her employee would assist and benefit all parties in the long run.

This article was written by Cape Town divorce attorney, Peter M Baker

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