A maintenance order is a judicial determination that one person is legally obliged to contribute towards the maintenance of another. Unfortunately, the granting of the maintenance order does not necessarily bring an end to the dispute. For many maintenance creditors, the more difficult question is what happens when the order is not honoured by the person who has been ordered to pay maintenance. Conversely, for maintenance debtors, enforcement can raise equally serious concerns where their financial circumstances have changed or where paying in terms of the maintenance order threatens their ability to meet their own basic needs.
The distinction between a maintenance order and actual payment is therefore important. An order establishes an obligation; enforcement mechanisms give practical effect to that obligation.
Remedies Available for Unpaid Maintenance
Section 26 of the Maintenance Act 99 of 1998 (“the Act”) provides a variety of mechanisms that may be pursued for the purposes of enforcing unpaid maintenance where a person has failed to make payment in accordance with a maintenance order. Section 26 stipulates that an order may be enforced by execution against property, attachment of emoluments or an attachment of a debt. The Act goes so far as to make provision for the attachment of pension funds, retirement annuities or similar benefits for the purposes of upholding the maintenance order. Each of these mechanisms offer a different route to the same destination, being the recovery of the unpaid maintenance. As such, the circumstances of the debtor and nature of the obligation are paramount when choosing a recovery mechanism, all of which warrant further consideration.
In terms of section 31 of the Act, it is a criminal offence not to pay maintenance. One can therefore also lay a criminal charge for noncompliance with a maintenance order. A successful prosecution results in the debtor getting a criminal record and can lead to imprisonment. Although it may lead to punishment of the debtor, this remedy may not in itself provide the creditor with financial relief.
If the order for maintenance forms part of a divorce order, contempt of court proceedings can also be launched. The maintenance debtor, if found guilty of wilful default, can be ordered to comply with the order within in specified time or face direct imprisonment.
The focus of this article is mechanisms for the maintenance creditor to recovery maintenance due rather than sanctions of the maintenance debtor.
Warrant of Execution
Execution against the property of a debtor is the process whereby a debtor’s assets are attached and thereafter sold, with the proceeds of this sale going towards covering the debt of the debtor. This is governed by section 27 of the Act and is usually applied when the debtor has assets which are identifiable. Section 27(1) of the Act provides that a person’s movable property must first be executed and only if their movable property is insufficient to satisfy the order will their immovable property be executed.
Attachment of Emolument
The attachment of emoluments, or a garnishee order, is governed by section 29 and 30 of the Act and involves the process whereby your employee deducts an amount from your wages or salary as per the maintenance order and such funds are paid directly to the creditor. This mechanism is generally applied to debtors who have stable employment.
Attachment of Debt
An attachment of debt is a unique mechanism that is seldom considered by the general layperson. This process is governed by section 30 of the Act and enables the Court to order the attachment of a debt that is presently or will in future be owed or accrued to the debtor. The third party who then owes the debt to the maintenance debtor would be directed to make payment in a specified way to satisfy the maintenance order. This mechanism would generally be applicable to maintenance debtors who do not have sufficient property or income to satisfy the maintenance order, but instead have a recoverable debt owed to them.
Attachment of Pension Funds, Annuities and Similar Benefits
Section 26(4) of the Act provides for the ability for the courts to attach pension funds, annuities and other similar benefits. This recovery mechanism is applicable to those maintenance debtors with a form of benefit. While generally protected by the Pension Funds Act 24 of 1956 (“the PFA”), sections 37A(1) and 37D(1)(d)(iA) provide explicitly for the attachment and deductions of funds from a benefit in regard to a maintenance order.
Fairness Towards the Maintenance Debtor
Having explained the main forms of recovering maintenance, it is important to understand that the courts will not callously strip an individual of their funds or property for the purposes of satisfying a maintenance order. The courts take into account the circumstances of the maintenance debtor in order to form a compromise between the parties.
For example, Section 27(5) of the Act expressly requires a debtor’s means be considered by way of an enquiry before a warrant of execution may be issued.
In the case of D.W v J.L.K (12604/2015) [2026] ZAWCHC 322 (17 June 2026), when assessing whether to grant an order that the debtor be held in contempt of Court, the Court emphasised the importance of proving that a debtor acts in good faith, which can extend to partially contributing maintenance even while not being able to fully comply as a way to show the courts that there was good faith on behalf of the debtor.
In this judgment, it was however made clear that it is not up to the debtor to decide whether to comply with a maintenance order or not, but that a maintenance order is an order just like any other and must be complied with. If a creditor is unable to comply with a maintenance order, they are to immediately approach the Maintenance Court to vary the order rather than taking the law into their own hands.
Therefore, the objective should not simply be to obtain a maintenance order, but to ensure the order translates into sustainable and meaningful payment while maintaining fairness to all parties in its enforcement.
Should you require assistance with maintenance proceedings, the enforcement or variation of a maintenance order, or any other matrimonial or family law matter, please feel free to contact C&A Friedlander Inc for assistance.
Article by:
Sidharth Kuar Singh
Candidate Attorney
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).