Child maintenance in arrears? The contempt of Court Enforcement option
“It has regrettably become all too common in divorce litigation that allegations are traded back and forth between the parties, with scant regard for the obligation to comply with orders issued by the court … The rights of the child become relegated to matters of secondary, or sometimes no importance, while the battle between the spouses takes centre stage” (Extracts from judgment below)
Our law, in protecting the interests of children in particular, provides you with an array of options when it comes to enforcing payment of maintenance orders. One of them is to ask the court to jail the defaulter for “contempt of court”.
The idea of course is that the threat of a stint behind bars is likely to extract payment out of even the wiliest of maintenance dodgers.
How does it work and what must you prove? A High Court case illustrates –
“Pay up or go to prison” – what you need to prove
A husband was ordered by the High Court to pay his wife R10,000 p.m. as maintenance for her and for their minor son, pending finalisation of protracted divorce proceedings.
After he had run up arrears totaling R393,500 the wife asked for him to be jailed (on a periodical imprisonment basis) for contempt of court.
The Court was on the facts totally unimpressed with the husband’s pleas of poverty, and in any event pointed out that our laws require compliance with court orders which, “whether correctly or incorrectly granted, have to be obeyed until they are properly set aside”. If the husband was genuinely unable to pay he should have applied for a variation of the original maintenance orders.
Note that to succeed with a contempt of court application you need to prove two things beyond reasonable doubt, namely that the defaulter has both –
Deliberately and wilfully disregarded the court order, and
Acted “male fide” (in bad faith) to deliberately and intentionally violate the “court’s dignity, repute or authority”.
Finding that the wife had on the facts succeeded in this regard, the Court ordered the husband to pay, within 30 days, the R393,500 arrears, an outstanding R161,000 contribution to costs, arrear interest, and legal costs on the punitive “attorney and client” scale. Failure means him spending 30 days’ worth of weekends (from 5 p.m. on Fridays to 7 a.m. on Mondays) in a prison cell.
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)