DID YOU KNOW THAT YOU CAN ATTACH A PERSON’S PENSION AND PROVIDENT BENEFITS TO SATISFY AN EXISTING MAINTENANCE ORDER?

Where a person has an existing maintenance order against another person for the payment of either child or spousal maintenance, the situation regularly arises that the person who is to pay maintenance does not have the monthly income to satisfy the amount as per the order and the person falls into arrears.

What the parties who are owed maintenance do not always know is that they can apply to court to have the provident or pension benefits of the person who is liable for the payment of maintenance attached in settlement of any arrear maintenance amounts as well as to possibly make provision for future maintenance. The Maintenance Act and the Pension Funds Act give a retirement fund the right to withhold or deduct amounts from pension benefits to pay maintenance to a child, and this grants applicants a mechanism to enforce a maintenance order.

In the case of Mngadi v Beacon Sweets & Chocolates Provident Fund & Others 2004 (5) SA 388 (D), the father was a member of the Beacon Sweets and Chocolates Provident Fund. He had resigned from his employment for the sole purpose to avoid paying maintenance for his children and ex-wife and planned to withdraw his benefit to maintain himself. The court held that the provident fund could be interdicted from paying the benefit to the member for as long as the member was liable for maintenance, and it ordered the fund to deduct from the benefit the maintenance due each month.

The court further held that once the maintenance was no longer due, for example, when the children reached the age of majority or become self-supporting, the father could be paid the remainder or balance of the benefit.

Should you require any further information regarding the attachment of pension or provident benefits or if you require assistance with such an application, kindly contact our offices to assist you in this regard.