Can I claim maintenance from my father who disowned me? Am I entitled to maintenance from my former spouse? Is there a legal obligation for us to pay education fees for our grandchildren?
These questions are indeed familiar in our everyday lives as we might be or have been in similar situations. The legal justice system has created a process and framework according to which obligations of maintenance can arise from. The Maintenance Act, Act 99 of 1998 is the main legal framework that caters for maintenance claims but there are regulations as well that guide the process.
As a point of departure, the main question would be, who can claim maintenance? The duty to maintain follows blood relations, adoption and the incidence of marriage. Children are to be supported by both their parents whether married, separated or divorced, staying together or not, including parents who have adopted that child. Grandparents can also be claimed maintenance from should the parents of the child be unable to maintain the children. A former spouse can also claim maintenance from the other upon termination of the marriage either by settlement or subject to the discretion of Court as guided by section 7 (2) of the Divorce Act, 70 of 1979 which informs the process of determining the presence of the duty to maintain, period and amount. However, this right is not automatic and the duty is upon the claimant spouse to prove that there is a duty of support.
A duty for support vests to the extent that the claimant proves that the person being claimed from has a legal duty to maintain the claimant i.e biological parents must still maintain their children even if they disown those children. In this, it must also be noted that a duty of support is different from access rights. Even if the court decides that one must not have access rights to the children, the duty to pay will still be there if the court ordered to such effect.
With an entitlement to maintenance vested, how then does one go about it? The starting point is visiting the maintenance officer at the local Magistrate’s Court. The officer will assist the claimant in preparing the application which must be completed on Form A. the application must be accompanied by proof of monthly income and expenditure, identity document, birth certificates of the children (if brought on behalf of minor children), details of the person being claimed from. The application is in the form of an affidavit that requires attestation of correctness and truthfulness. Should any part of the claim be proved to be out of dishonesty, it will not work in the favour of the claimant.
In the case of minor children, the parent staying with such minor children or guardian brings in the application on their behalf. Thus, the minor children are actually the claimants. Upon the minor children reaching the age of majority (18 years) it is presumed that they are now responsible for their own upkeep and therefore the person paying maintenance can approach the court where the order was granted and request that the order be cancelled. Should the child who has reached age of majority still require maintenance, then such child can bring in the application on their own. The defendant can either consent to the claim or defend it whereby he will bring an account of his income and expenses to argue that he cannot afford the amount claimed. Should the amount granted become inadequate in future, an application for variation proving an increase in expenses is brought and the matter decided upon by Court.