Contempt of court in a maintenance case

Don’t ignore a maintenance order!

When a couple divorces, a requirement to pay maintenance is often included in the divorce arrangement. This could be spousal maintenance, child maintenance, or both. While there is not always a court order involved, when one is in place it is legally binding. In maintenance disputes, a court order can be a critical tool to safeguard the emotional and financial wellbeing of vulnerable parties (usually women and children). The consequences of disregarding a court order can be severe. The non-payer can be found in contempt of court in a maintenance case.

What is contempt of court?

Contempt of court occurs when an individual deliberately and wilfully disobeys an order of court. Contempt carries the same burden of proof as criminal matters, requiring, beyond reasonable doubt, proof of wilful and bad faith non-compliance.

Where maintenance required by a court order is not fully paid, vulnerable women and children can file a contempt of court application to recover the amount owing. They must prove that the non-compliance was intentional and not a result of a genuine change in the payer’s financial circumstances. The courts prioritise the protection of the rights of vulnerable parties, particularly children who rely on maintenance for their basic needs.

Court orders are binding and enforceable

A court order is not optional or conditional. Compliance is a matter of public policy. Obedience to court orders upholds the legal system’s integrity. For women and children, a court order is an enforceable tool that ensures financial support. When the payer does not comply, severe penalties (including imprisonment) can be used to compel compliance. Women are entitled to approach the court to enforce full payment to protect and provide for their family.

Burden of evidence

For an application for contempt of court to succeed, wilful and bad faith non-compliance must be proven. Records are needed of non-compliance, such as short payments, failure to cover agreed expenses, and missed payments. Proof of financial hardship such as unpaid school fees and bank statements strengthen a case. Legal representation is critical to present the evidence properly and meet the requisite burden of proof.

Applications for variation are not retroactive

If a payer applies to vary the court order, claiming a change in financial circumstances, the court will normally order compliance with the existing order before an application for variation can be considered. This principle is based on the need to maintain the authority of court orders and prevent abuse of the court process by the use of a variation application to avoid or delay complying with a court order. The court is unlikely to consider a variation application until the non-compliance is rectified. 

The best interests of children come first

A child’s access to basic needs such as housing, education and healthcare is a constitutional right. Section 9 of the Children’s Act ensures that the best interests of the child guide the courts. Therefore, the courts prioritise the needs of the children in maintenance disputes. Where non-compliance directly affects a child’s access to basic needs or stability, the impact is highlighted in court applications.

Timing and communication 

As with all matters in divorce and co-parenting, open communication can prevent disputes escalating. Interactions between parents should be documented: where the defaulting parent claims hardship, evidence can be requested swiftly and discussions regarding reasonable adjustments can take place. The alternative is uncertainty and financial strain, affecting the fulfilment of children’s  basic needs.

Consequences of contempt of court in a maintenance case

Where a court orders a punitive measure for a non-compliant parent, this may be suspended provided the outstanding amounts are paid within 60 days. The harsh consequences serve to encourage payment of arrears rather than punish the defaulting party. An opportunity to rectify non-compliance balances the need to uphold the legal integrity of court orders with the needs of the children and acknowledges practical considerations. 

Contempt applications can restore adherence to a court order in a manner that does not result in imprisonment (which could negatively affect the payer’s ability to provide financial support). However, the option of a more severe punishment exists where the order is still not respected. The court’s aim is to protect the vulnerable parties’ interests and encourage compliance.

Cape Town family lawyer can help

Our judicial system takes the court’s role as the upper guardian of children seriously by enforcing court orders that ensure children’s basic needs are met. If your ex-partner has defaulted on maintenance payments mandated by a court order, a good family lawyer can ensure your rights are protected and your child’s best interests are put first.

SD Law is a firm of family attorneys in Cape Town, Johannesburg and Durban with deep experience of divorce, custody and maintenance. If you have concerns over your maintenance agreement or problems with maintenance arrears, call family lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Maintenance claim against a retirement fund
• Calculating spousal maintenance
• Spousal maintenance post-divorce
• Man who failed to pay maintenance to child and former wife must report to jail

Simon Dippenaar

Founder & Managing Partner, SD Law

Attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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