A client asked:

I would like some advice please. My partner and I were living together for 5 to 6 years then broke up in February 2018 because he was cheating on me. We have 2 children together which he paid R1000 Maintenance for a month. Last week he let me know that he lost his job and I would like to know how can I get some of his Provident fund money to go to my kids? Even if it’s invested into an Educational Fund that will be fine.

The one problem is we were not married…what are my rights as a mother?

Answer:

Unfortunately, as you were never married, there has not been a dissolution of the marriage so there is no automatic claim on his pension fund. However, you can obtain a maintenance order for the children. The court will consider the needs of the child and the father’s ability to contribute. Once you have this order you can attach his provident fund benefits to cover area and (possibly) future maintenance.

The Maintenance Act and the Pension Funds Act give a retirement fund the right to withhold or deduct amounts from pension benefits to pay maintenance to a child, and this grants applicants a mechanism to enforce a maintenance order.

The fund cannot make any deductions for outstanding maintenance payments until the husband’s benefit in the fund accrues. As he has lost his job, the fund will pay out a retirement or withdrawal benefit.

In Mngadi v Beacon Sweets and Chocolates Provident Fund, the father was a member of the Beacon Sweets and Chocolates Provident Fund. He had resigned to avoid paying maintenance and planned to withdraw his benefit, the court heard. The court ruled the fund could be interdicted from paying the benefit to the member for as long as the member was liable for maintenance, and it ordered the fund to deduct from the benefit the maintenance due each month.

The court said that once the maintenance was no longer due – for example, when the children reached the age of majority – the member could be paid the remaining benefit.

Before you can apply to have a member’s benefits attached to pay outstanding maintenance, you must be in possession of a valid maintenance order. Then you will have to approach a competent court.

Once the retirement benefit has been paid to the member, the benefit is no longer in the hands of the pension fund and you cannot attach the benefit.

Therefore, if you know that a defaulting parent is, for example, going to leave his fund, you should ask the fund to withhold his or her benefit while you finalise a claim for arrear maintenance.