Child Maintenance Payments – The Duty to Support
By Jolane van der Walt-Nieuwoudt (LLB) (LLM)
The aim of the Maintenance Act 99 of 1998 is to ensure that all parents honor their duty to maintain and support their child/ children. A parent holds a legal responsibility to provide for the financial needs of their child. Unfortunately, not all parents uphold this obligation.
Who is liable?
Both parents, including adoptive parents, have an obligation to meet the financial needs of their minor child. Parents of a child are liable for maintenance irrespective of whether the parents are/ were married, cohabiting, living apart, separated or divorce.
The relationship between the parents is irrelevant when determining whether there is an obligation to pay maintenance towards their minor child.
Additionally, should one or both parents be unable to afford the monthly maintenance of their minor child, a maintenance claim can be issued against the child’s maternal and/ or paternal grandparents. This is however only possible should the grandparents be in a financial position to maintain their grandchild, whereas the biological parent is unable to.
How is the amount calculated?
The court will look at the needs of the child, as well as the ability of the parents to afford child maintenance. The courts consider the daily and monthly living costs of a child, such as food, clothing, housing (including water, electricity, rental, and household items), medical care (is the child on chronic medication or does the child have special needs), entertainment and education.
The court will consider the income of each respective parent and will then use it to obtain a percentage of the child’s expenses that each parent is liable to pay.
Maintenance inquiry
The amount of maintenance payable is determined by the court after a financial enquiry is made into the financial means of both parents and their ability to afford the maintenance. Parents are required to disclose their income, expenses, assets and liabilities prior to a financial enquiry being held.
Naturally, a court cannot order a parent to pay more than they can afford. The court will instead order said parent to pay maintenance within their affordability.
If a parent receives no income at all, the court will consider whether the specific parent has sizable assets that can be utilized towards the maintenance of a minor child.
Failure to pay child maintenance
Parents who violate a maintenance order may be held accountable in a number of ways, which include but are not limited to contempt of court proceedings, civil proceedings, and/or criminal proceedings.
Not only is a parent liable to continue paying maintenance in terms of an order, he/she also remains liable for arrear maintenance that was not previously paid in accordance with the order.
The court may also attach the salary (in other words order your employer to deduct the amount from your salary), banking accounts, savings accounts or assets of the defaulting parent. Alternatively, a warrant of arrest could also be issued!
