Attachment of retirement fund benefits for Maintenance

Attachment of retirement fund benefits for Maintenance

If your ex-spouse has been regularly defaulting on maintenance payments and you are aware that they have a pension fund or retirement investment, it is possible to apply to the courts for an attachment order to cover the outstanding maintenance from the proceeds of a retirement investment.

This type of claim is a complex claim from a procedure point of view as both the maintenance act and the Pension Funds act need to be taken into account when making the claim. It is highly recommended that you make use of a competent attorney when undertaking such a step.

It is also possible to prevent a member from withdrawing pension fund benefits by making the correct notifications to the Fund to withhold the benefits pending the outcome of an arrears maintenance hearing. It is important to take this step as once a member has taken the pension benefits, they are no longer in the hands of the fund and the onus will then be on you to attache from the relevant bank or the individual personally.

It is important to note that the Pension Funds act makes specific mention of “Maintenence and Tax” as reasons that retirement benefits can be used to pay.

The process of dealing with default maintenance is as follows. (These are the basic steps and your attorney or maintenance officer should be consulted when attending to these steps)

1. Failure to make payment of maintenance order on due date
2. Defaulter is given 10 days to rectify the default
3. Approach the courts to enforce the maintenance order
4. Order issued by court

The order that the court issues will be in the form of an garnishee order against the persons salary, the order to sell property to cover the arrears (furniture, fittings, home etc) or if there appears to be no other method to recover the arrears maintenence the court may order that retirement fund benefits be attached.

In extreme cases of default the courts have ordered that the benefits be withheld and the fund pays the maintenance directly to the care giver.