Answer to a question from a reader

Do I have to attach my provident fund to the child maintenance that I pay?

The short answer

Yes, but only if you have no other means to continue paying maintenance.

The whole question

Dear Athalie

I was working on contract until I accepted a permanent position at work. Can I claim my provident fund money for the time that I was on contract? If so, do I need to get an order from the maintenance court for the child maintenance that I pay? The maintenance is not in arrears and I intend to keep maintaining my child.

The long answer

Generally, pension law in South Africa doesn’t specifically provide for future payment of child maintenance from provident funds, but the courts have been active in interpreting the law to ensure that maintenance is paid out, where necessary, from provident funds.

Section 37A(1) of the Pension Funds Act 24 of 1956 says that pensions or provident funds can only be attached or transferred when there is a court order, in terms of the Pension Fund Act, Income Tax Act 58 of 1962 and the Maintenance Act. 

Section 26(4) of the Maintenance Act lays down that “any pension, annuity, gratuity or compassionate allowance or other similar benefit shall be liable to be attached or subjected to execution under any warrant of execution or any order issued … in order to satisfy a maintenance order”.

A News24 article in 2022 explains that in terms of a recent court order, “a maintenance order is a ‘judgement debt’ in terms of the Prescription Act, meaning that a maintenance order will now only ‘prescribe’ 30 years after the order is made, instead of 3 years, which is usually the case for ‘ordinary’ debt”. 

Clement Marumoagae, a lawyer at Marumoagae Attorneys and a senior lecturer at Wits University, points out that “Section 26(4) of the Maintenance Act appears to be making provision for the attachment on the basis of the maintenance that is currently due and to a larger extent the amount of maintenance that is outstanding and not necessarily that which is payable in future. It makes provision for payment of arrear child maintenance on behalf of the child from the retirement fund member’s retirement benefits.” 

But he goes on to say that in Magewu v Zozo and Others 2004, the court found that “The attachment of pension fund benefits in respect of future maintenance claims in casu is a direct and effective means of ensuring that the rights of the child and the dignity of women are upheld. There is no reason why, in this instance, the pension fund should not be directed to withhold the withdrawal benefit in order to secure the future maintenance claims of the minor child”.

“However,” says Mr Marumoagae, “Before the court can order that the other parent’s retirement benefits should be attached, it must be satisfied that the party against whom such an order is made has no other means of paying child maintenance. Claiming maintenance from the maintenance defaulting member’s retirement fund benefit should be a measure of last resort. This will obviously be the case where a maintenance order has been granted and the person against whom it has been granted has defaulted in their payments and there have been no other means other than the retirement benefits to satisfy the maintenance order.”

In other words, attaching the provident fund would be necessary if you were in arrears and had no other means to continue paying maintenance. But if you are employed and are not in arrears with maintenance payments, there would be no reason to attach the funds.

If the child’s mother has brought an application to the maintenance court to attach your provident fund, you would have to appear in the maintenance court and show that you are able to continue paying the maintenance without the court needing to attach your provident fund. 

If the child’s mother has not applied to have your provident fund attached, you should be able to claim it without obtaining an order from the maintenance court.

You could also approach Legal Aid for advice: 

Helpline: 0800 110 110

Please-call-me: 079 835 7179

Wishing you the best,

Answered on May 10, 2022, 9:26 a.m.

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