Maintenance matters – Child maintenance

15 Feb 2021

When it comes to your child’s rights

When it comes to children’s rights, the law can serve as their strongest guardian. In fact, according to the law, parents have a duty to support their children until the children can support themselves.

This includes providing for their children’s needs such as food, clothes, rent, school fees and medical aid.

While the parents are married or living together, the issue of making sure their children’s needs are fulfilled does not usually arise.

However, when parents divorce or separate, the question of which parent will support the children and how much money they will provide, does become an issue that needs to be formally decided upon.

What is child maintenance?

Maintenance refers to the amount of money that a court rules a parent must provide for their child under certain circumstances.

Who can claim child maintenance?

A biological parent can claim maintenance from the other parent. They are able to make this legal claim, whether they are or are not married, living together, separated, or divorced. Indeed, even a parent of adopted children can also claim maintenance from the other adoptive parent.

A grown up child can also claim maintenance from their parents. Contrary to popular belief, a child over 18 years old can claim maintenance from their parents. The parents are obliged to pay maintenance until the child is self-supporting.

How much maintenance will be given?

The court or another professional person will help with working out how much money is needed to take care of the child.

The amount of money given as maintenance will be decided according to the three following factors:

1. Reasonable needs of the child

The cost of the child’s needs such as food, clothes, school fees and medical aid will be calculated. The usual standard of living in the family will also be considered.

2. The income and expenses of each parent

Once the amount of maintenance has been calculated, the court or the professional involved will compare the income and expenses of each parent. The parent with the bigger net income will be required to pay most of the maintenance.

3. If the parent can’t afford to pay

A parent cannot be ordered to pay maintenance he or she cannot afford. If the parent cannot afford the maintenance, they will be required to pay a lesser amount. Their financial position may improve in a few months or yearly so an order not to pay isn’t permanent.

A parent who has no income at all, will not be required to pay maintenance. However, if they own significant assets or possessions, which can be used to pay maintenance, they will be expected to do so.

How do I claim for maintenance?

Negotiation

The best way to try and reach an agreement on maintenance would be to negotiate with the other parent.

Usually the parent who earns more, would be expected to pay more towards their child’s maintenance.

Once you have both agreed on an amount, you should put this agreement in writing.

Mediation

However, if it is not possible to reach an agreement between the two of you, you can ask for a professional mediator to get involved. The mediator will help you to work together to find a suitable arrangement. The mediator is not like a judge or arbitrator; they will not force a decision on you but rather will help you communicate effectively with the other parent in order to reach an agreement.

Many attorneys also practice as mediators. There also some organisations that provide mediation at a greatly reduced cost.

Two such organisations are:

Pro Bono
Johannesburg +27 (11) 339 6080
Durban +27 (31) 301 6178
Cape Town 087 806 6070/1/2

Family life Centre
Johannesburg +27 (11) 788 4784

Court of law

However, if you are experiencing real problems with organising maintenance, there is a special Maintenance Court where you can get help.

This court has a fairly simple process and neither you or the other parent will need an attorney.

This is how the court process works:

1. Apply at the Magistrate’s court that is closest to the district where you or your child lives.
2. Complete a form called J101 before you go to court in order to avoid any delays. With Legal&Tax you’re not alone and we can provide you with the form or you can download it from http://www.justice.gov.za/vg/mnmt.htl.
3. You will also need to bring the following documents with you to court:
   • Copies of the identity document and birth certificate of the child / children;
   • A copy of your identity document;
   • Your last 6 months bank statements;
   • A list of the expenses of the child / children;
   • A list of your monthly expenses;
   • Proof of your monthly expenses, such as receipts for food purchases, electricity and rent payments;
   • Proof of your income (such as your pay slip);
   • The name, surname and address of the parent/person responsible for the payment of maintenance (including work address);
4. The court will then serve a summons on the other parent. This is a notice that tells them to appear at the court on a specific date to discuss the matter. This parent must provide the court with the same information and documents as you have already given.
5. A court official called a Maintenance Officer will then investigate the case and try and mediate a settlement.
6. If you and the other parent cannot agree on a maintenance amount, then a court date will be set.

On this court date, both parents will provide all the relevant information needed, before the Magistrate. Each parent has to prove what their income and expenses are, as well as what the children’s financial needs are. The court does not need to know how your relationship broke down, nor whose fault it was.

It is simply there to make sure your child’s rights are protected and that they are given the maintenance they need.

The court will decide if a parent needs to pay maintenance, and if so, how much this should be.

What happens if my ex-partner refuses to pay maintenance?

If the parent refuses or fails to pay maintenance, you must report them to the Maintenance Officer at the same court that heard the matter .

The court will then order one of the following:

• An ‘emoluments attachment order’ – this means that the court will order the employer of the person who didn’t pay maintenance, to deduct an amount from their salary for maintenance every month;
• The attachment of a debt owing to the person who failed to pay – If any lump sum is due to a parent before they get it the Court can order it goes direct to the other parent.
• The execution (forced taking over) of the property of the person who failed to pay maintenance;
• Criminal Prosecution. A warrant of arrest can be issued against the person who failed to pay maintenance and they can have to pay a fine or be put in prison.

What happens if my ex-partner lives in a foreign country?

South African law allows its citizens to claim maintenance from a parent living in a foreign country.

South Africa has reached an agreement with a number of countries, whereby the foreign country will recognise and enforce a court order for a maintenance payment. Here is a list that shows which countries are recognised by our government:

Australia, Canada, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey (Bailiwick of Hong Kong), Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, United States of America, Zambia and Zimbabwe.

Unfortunately, not all countries have joined our agreement. If your ex-partner lives in one of these excluded countries, although it can be a very long and difficult process, you do still have a chance to approach the court of that country to see if they can maybe help you.

Legal&Tax Services can help with maintenance matters!

Remember with Legal&Tax you’re not alone. We can help you in the following ways:

• If you need expert legal advice on how to apply for a maintenance order and writing to the other parents to pay;
• We also can assist by mediating the matter;
• If you already have a court order for maintenance, but your partner is not paying, we can guide you on what steps you can take; and
• If you don’t have the money to go to court, we can put you in contact with a panel attorney or mediator to work.

Article sourced from Legal&Tax.

See also:

• Dealing with divorce – How to part ways properly according to the Law
• Child Justice Act 75 of 2008 & Regulations (Print) 14e
• The legal advantages of marriage
• Maintenance pending divorce litigation? It is possible!
• How much maintenance? – Best interests of the child

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)