By Jolané van der Walt (LLB) (LLM)
A child is entitled to reasonable maintenance and being supported by his/her parents. There is a legal duty on both parents to maintain the child according to their respective means. This duty exists regardless of whether the child is (i) adopted or (ii) born out of wedlock. When calculating what amounts to ‘reasonable’ maintenance, the maintenance court will look at the family’s standard of living, their income and the cost (expenses) of living. The fact that the father/mother may be in a stronger financial position does not mean that the other parent has no liability. The duty rests on both parents.
- HOW TO APPLY
Apply for maintenance at the magistrate’s court in the district where you live. You must complete a form called: Form A: Application for a maintenance order (J101).
- WHEN APPLYING YOU ALSO NEED TO BRING THE FOLLOWING SUPPORTING DOCUMENTS TO THE MAINTENANCE OFFICE
- Your identity book (or passport or drivers licence)
- Certified copies of the child/children’s birth certificates
- Three months’ bank statement (most recent)
- Three months’ proof of income (payslip) or the signed letter from the employer confirming your income
- Physical/work address of the person responsible for paying the maintenance money
- List of your income and expenditure e.g. water and lights bill, till slips for groceries, school expenses, medical and travel receipts, clothing accounts, etc.
- Full name of parent/person responsible for paying the maintenance money
- Copy of Decree of Divorce (in the case of divorce)
2. WHAT CAN BE CLAIMED
Youmay claim reasonable support from the other parent in respect of the child, which will include, but is not limited to the following: food, clothing, housing (rent), as well as paying for education and transport. The court may also grant an order for the payment of medical expenses, or may order that the child be registered on the medical scheme of one of the parties as a dependant. To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.
3. THE PROCESS:
The court will set a date on which you and the respondent (the person whom you wish to pay maintenance) must go to the court. The maintenance officer and an investigator will investigate your claim and look into your circumstances. The court will serve a summons (a letter instructing a person to come to court) on the respondent to appear in court on a specific date to discuss the matter. The respondent then has a choice between agreeing to pay the maintenance claimed or to contest the matter in court. If the respondent agrees to pay the maintenance as claimed, a magistrate will review the relevant documentation. He or she will then make an order, and may decide to do so without requiring the parties to appear in court.
If the person who is allegedly liable to pay maintenance does not consent to the issuance of an order, he or she must appear in court, where evidence from both parties and their witnesses will be heard. If the court finds the person liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how maintenance payments must be made.
4. MONTHLY PAYMENTS
A portion is usually paid to the parent who has primary care of the child (the person with whom the child resides with permanently). The divorce agreement or maintenance order will stipulate that one parent must pay to the other a sum of money each month. The payments are made in advance, on or before a certain day of every month, usually by way of a debit order/electronic transfer, into an account nominated by the parent with primary care. The maintenance payable normally increases annually on the anniversary date of the divorce order or first maintenance order in accordance with the Consumer Price Index.
5. DO I STILL HAVE TO PAY MAINTENANCE IF I AM DENIED ACCESS TO MY CHILD?
Your duty to pay maintenance and your right of access to your children are two entirely separate matters and one has no relation to the other. You still have to pay maintenance, even if the other parent (a) remarries, (b) is involved in another relationship, (c) does not allow you to see the child(ren) or (d) if either party later has more children.
6. WHAT HAPPENS IF THE MAINTENANCE IS NOT PAID?
When the respondent fails to comply with the terms of the order, and the order remains unsatisfied for a period of 10 days, the complainant may apply to the maintenance court where the respondent is resident for the authorisation to issue a warrant of execution OR an order for the attachment of emoluments (garnishee order).
Remember, not paying maintenance is a criminal offence and the respondent can be fined or imprisoned for up to one year, or both. To escape punishment, the respondent must show to the satisfaction of the court that he/she could not pay maintenance due to a lack of money or income.
Jolané van der Walt (LLB) (LLM) from Legal Hero