Garnishee orders: maintenance paid straight from the salary

When you can apply for arrears

You can apply once a payment under the order has been unpaid for 10 days. Apply at the maintenance court in the area where you live.

How to apply

1. Fill in Form K (J306), the application for enforcement. Tick the box for attachment of emoluments (salary).
2. Give the employer’s name and address, and anything you know about the other parent’s income.
3. Attach a copy of the maintenance order and a statement of the amount unpaid, month by month. You swear to it before a commissioner of oaths, usually at the court.
4. The court makes the order. It can hear the employer first, but it may go ahead without the employer to avoid delay.

If you don’t have an order yet, apply for one first, and ask for the maintenance to be paid by the employer from the start.

What the employer must do

• The maintenance officer serves the order on the employer within 7 days of it being made.
• The employer must deduct the amount and pay it over as the order says.
• These payments come first. The employer must give them priority over other court orders on the same salary.
• If the other parent leaves the job, the employer must tell the maintenance officer within 7 days.

If the money doesn’t arrive

1. Check your bank statements and write down which months are missing or short.
2. Go back to the maintenance officer with your statement and ask them to follow it up with the employer.
3. An employer that fails to pay can have the order enforced against it for the amount it didn’t pay.
4. An employer that refuses or fails to pay without good reason commits an offence. The penalty is a fine or up to 2 years in prison.

If the other parent changes jobs

The other parent must tell the maintenance officer about a new job within 7 days. Not doing so is an offence, with a fine or up to 1 year in prison. The order can be served on the new employer. If you hear about a new job, tell the maintenance officer.

If the other parent is self-employed

There is no employer to serve. The court can instead:

• order anyone who pays the other parent regularly under a contract to pay the maintenance directly;
• attach money owed to the other parent, such as payments from clients (attachment of debts, section 30);
• issue a warrant to attach and sell property (section 27).

Pensions

A pension, annuity or gratuity can be attached to pay a maintenance order. How far a retirement fund can pay out for future maintenance is a developing area of law. Ask the maintenance officer or an attorney about your case.

How long it takes

The Act sets some time limits: 10 days before you can apply for arrears, and 7 days to serve the order on the employer. There is no official time for the first deduction. It depends on the court, the employer and the payroll date. The Department of Justice says a first maintenance payment can take several weeks.

Questions parents ask

Can the garnishee cover the monthly maintenance, not just arrears?

Yes. The court can order the employer to pay the monthly maintenance directly from the salary (section 16(2)). The emoluments attachment order under section 28 is for arrears.

How long must I wait before applying for arrears?

Until a payment has been unpaid for 10 days.

Which form do I use?

Form K (J306), the application for enforcement. Tick attachment of emoluments.

What if the employer doesn’t deduct the money?

Report it to the maintenance officer with your statement. The order can be enforced against the employer for the amount it failed to pay, and an employer who refuses or fails to pay without good reason commits an offence.

What if he changes jobs?

He must report the new job within 7 days. The order can be served on the new employer. Tell the maintenance officer if you learn where he works.

Can a garnishee be used if he is self-employed?

There is no employer, but the court can order people who pay him regularly to pay you, attach money owed to him, or attach his property.