Section 89 of the Matrimonial Causes Act (Chapter 282) provides that a maintenance order may be enforced in accordance with Schedule 2. Schedule 2 runs to eighteen sections.
Who applies, and on what ground
A person entitled to receive payments under a maintenance order may apply to (a) the National Court, or (b) a court in which the order is registered under section 88.
If satisfied that earnings are payable or likely to become payable to the defendant, and that —
(a) at the time of the application there was due and unpaid an amount equal to not less than (i) for an order for weekly payments — four payments; or (ii) in any other case — two payments; or
(b) the defendant has wilfully and persistently failed to comply with the order,
the court may, in its discretion, order the employer to make payments in accordance with Schedule 2.14(1).
The court shall not make an attachment of earnings order if it appears, in a case under Schedule 2.4(a), that the failure to pay was not due to the defendant’s wilful refusal or culpable neglect.
So arrears alone are not enough. A payer who fell behind because they lost their job or were in hospital is not to have their wages attached — the remedy is aimed at those who will not pay, not those who cannot.
The normal deduction rate and the protected earnings rate
The rate at which the court thinks it reasonable that earnings be applied to satisfy the maintenance order — not exceeding what appears necessary to secure (a) payment of sums falling due under the order, and (b) payment within a reasonable time of arrears and of costs payable by the defendant.
The rate below which, having regard to the resources and needs of the defendant and of any person for whom he must or reasonably may provide, the court considers it reasonable that the net earnings of the defendant should not be reduced by a payment under the order.
| Step | What happens |
|---|---|
| 1 | Work out net earnings — earnings less income tax deducted |
| 2 | Compare with the protected earnings for that pay period |
| 3 | If net earnings do not exceed protected earnings — deduct nothing |
| 4 | If they exceed it — pay over the normal deduction, so far as the excess permits |
| 5 | Any shortfall from earlier pay-days is carried forward and made good later |
It is the floor. If a payer’s wages fall in a bad week, nothing is deducted — and Schedule 2.14(1)(b) and (d) then carry both the unmet protected earnings and the unpaid normal deduction forward, so nothing is lost and no one is left destitute.
The rate takes account of any person for whom the defendant must or reasonably may provide — so a second family is a relevant consideration.
Schedule 2.2 gives the Schedule effect notwithstanding any law that would otherwise prevent attachment of earnings or limit the amount attachable.
“Earnings” under Schedule 2.1
(a) wages or salary, including fees, bonus, commission, overtime pay or other emoluments payable in addition; and
(b) pension, including an annuity in respect of past services and periodical payments by way of compensation for the loss, abolition or relinquishment of, or diminution in, the emoluments of an office or employment.
Certain Australian pensions specified in the Schedule; and pension payable to the defendant in respect of injury, disablement or disability.
“Employer” is defined widely — a person including the State and any government authority — by whom, as a principal and not as a servant or agent, earnings are payable. A public servant’s salary is therefore attachable. If there is a dispute about whether a payment is “earnings”, Schedule 2.10 allows the employer, the defendant or the payee to apply for a determination, and the employer is protected from liability while the application is pending.
The employer’s obligations
2.13(1) — must comply with the order, notwithstanding any other law.
2.13(2) — where two or more orders are in force, comply in order of commencement, treating later orders as applying to the residue.
2.14(5) — give the defendant a notice specifying particulars of each payment.
2.8 — if the defendant is not their employee (and has not been for four weeks), immediately notify the proper officer of the court.
2.7(1)(b) — on order, provide a signed statement of the defendant’s earnings; the defendant may equally be ordered under 2.7(1)(a) to disclose employers and earnings.
2.14(4) — the employer may retain 5t from the balance for its own use for each payment made, as an administrative allowance.
An order does not come into force until seven days after service on the employer (2.6(6)), and payments go to an officer of the court named in the order (2.6(4)), who pays them on to the payee (2.15).
Schedule 2.17 and 2.18
A person who fails to comply with a requirement of the Schedule or an order under it, or who knowingly or recklessly gives a false or misleading statement or notice in a material particular, is guilty of an offence. Penalty: a fine not exceeding K200.00. It is a defence to prove all reasonable steps were taken to comply.
A person who dismisses an employee, injures him in his employment, or alters his position to his prejudice by reason of an attachment of earnings order is guilty of an offence. Penalty: a fine not exceeding K200.00.
The burden of proving that the employer was not actuated by that reason lies on the employer once the other facts are proved — and on conviction the court may order reimbursement of lost wages and reinstatement.
An order may be discharged or varied on the application of the defendant or the payee (2.11), and ceases on a warrant of commitment or attachment being issued, or on discharge or variation (2.12) — though the court may direct that it continue until arrears are paid. While an attachment of earnings order is in force, 2.9 bars any writ or warrant of commitment in earlier enforcement proceedings. Payments received discharge arrears first, oldest first, then costs (2.16).
Sources
- Matrimonial Causes Act (Chapter 282) — ss 86–90 and Schedule 2
- Maintenance Orders Enforcement Act (Chapter 279)
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.