The Children’s Act 38 of 2005 provides that a child’s parents (biological or adoptive) have a duty to financially maintain and support their children. Unfortunately, it often happens that one parent does not do their part and the other parent must then obtain a maintenance order from court under the Maintenance Act 99 of 1998. Even after a court order has been obtained, the other parent may still not pay the maintenance (for example, due to losing their job). A question that is often asked in those situations is whether pension funds can be used to satisfy a child maintenance order when the parent is not making payments. This article will address this question and educate on the rights available to parents faced with this situation.
Section 28 of the Constitution provides, amongst other things, that a child has the right to parental care, basic nutrition, health services and so on. It further provides that a child’s best interests are of paramount importance in every matter concerning a child. This means that whenever there is a matter that concerns a child, the outcome of the matter should always consider what would be in the best interests of the child. Caring for a child costs money and that is why being financially maintained is in the best interests of a child. Legislation provides for many avenues to ensure that parents financially maintain their children.
A parent can apply for a maintenance order against the other parent and there are different ways to enforce that order should the other parent default on making payment. For example, the maintenance order may be enforced by attaching the defaulter’s salary, property or other debt owing to the defaulter. Read more on this .
What does legislation say about using pension funds for maintenance?
Generally, pension funds are not mentioned as a source from which maintenance may be deducted. In fact, section 37A of the Pension Funds Act 24 of 1956 provides that no pension fund (including an annuity) may be deducted to satisfy a debt.
However, there is an exception to this rule. Section 37D of the Pension Funds Act allows for a pension fund to be attached as provided for under the Maintenance Act. Section 26(4) of the Maintenance Act provides that despite anything to the contrary contained in any law, any pension fund may be attached to satisfy a maintenance order. This means that an amount outstanding in terms of a maintenance order may be deducted from the defaulter’s pension fund. This deduction may be affected at any time, before, after or on retirement or resignation of the defaulter.
For example, Parent A has a child maintenance order against Parent B. Parent B is planning on resigning from work and wants to withdraw their pension benefit. Before the pension fund pays Parent B, it is possible for Parent A to, in some instances, institute a claim and an amount may be set aside or deducted from Parent B’s pension fund in light of the child maintenance order.
What steps may be taken to deduct maintenance from a pension fund?
One cannot just approach a pension fund and ask for a deduction towards child maintenance to be made. There certain factors to be considered and steps to follow first, such as:
- It is advisable for parents to attempt settling the issue of child maintenance amicably between themselves.
- Where the issue cannot be settled between the parents, the parent seeking child maintenance may approach the maintenance court for a maintenance order (if one has not already been obtained).
- If the parent against whom the order has been granted defaults on payment, the other parent may approach a maintenance officer for enforcement of the maintenance order.
- There are different remedies available for the enforcement of the maintenance order, including issuing a warrant of execution for the attachment of the defaulter’s movable/immovable property, attachment of salary or other debt due to the defaulter, criminal proceedings or attachment of a pension fund, if necessary.
- It is important to note that a warrant of execution must first be obtained and that a parent in whose favour the maintenance order was granted cannot just approach the pension fund of the defaulter.
- A warrant of execution issued by the maintenance officer shall be carried out by the maintenance officer or the sheriff of the court. This means that if a warrant of execution has been issued for arrear maintenance to be paid from the pension fund, the maintenance officer or sheriff of the court shall approach the pension fund administrator with the warrant of execution.
- The courts consider attachment of pension benefits as a last resort.
How the courts ruled on the matter:
- In a judgment handed down in 2022, the mother of a child held a maintenance order against the father of the child. The father had not been making payments on the maintenance order as his income was apparently affected by the Covid-19 pandemic. The mother of the child applied to the court to execute on the maintenance order and it was granted. This means that it was made without notice to the father. The father’s pension fund went on to pay an amount of about R777 000.00 to satisfy the arrear amount. The father of the child attempted to approach the court to argue the matter as there was no prior notice to him, but he was not successful.
- The deduction from a pension fund with regard to maintenance orders is not only limited to arrear maintenance. In a case where a person is withdrawing their pension benefit on termination of employment, the courts have ruled for such a person’s pension fund benefit to be attached for future maintenance. This takes place where there is reasonable suspicion that there may be failure to pay future maintenance due in terms of a maintenance order in place.
- These judgments only illustrate two examples of scenarios and how the courts dealt with it. One must remember that every matter will be dealt with according to the specific circumstances and not every matter will be dealt with exactly the same way.
In conclusion, a maintenance order may be satisfied by attachment of the defaulter’s pension fund benefit in some instances. The amount to be attached may be for arrear maintenance or future maintenance, depending on the circumstances. It is important to bear in mind that obtaining a maintenance order is the first step in maintenance disputes and attachment of pension funds to satisfy the maintenance order is likely to be considered as a last resort.