Child maintenance – The facts!
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Topics Dispute Resolution | Family Law
13 Oct 2021
Here’s how to claim
Every child is entitled to receive maintenance for his/her basic needs such as food, clothing, housing, education and health care.
There are many myths about child maintenance. For example, many people believe that parents must support their children only until they reach the age of 18. In truth, the parents’ duty to support their children continues until their child is self-supporting.
- Who can claim child maintenance?
- How much maintenance must I pay?
- What is the Maintenance Court?
- What if my ex-husband refuses to pay maintenance?
Who can claim child maintenance?
The biological parent of a minor child (whether the father or mother) can claim maintenance from the other parent of the child. A parent of an adopted child can claim maintenance from the other adoptive parent.
A major child (over 18 years) can claim maintenance directly from his/her parent(s), without the assistance of a parent.
How much maintenance should I pay?
The amount of maintenance that parties pay depends on two factors:
- The reasonable needs of the child; and
- The financial position of each parent.
The reasonable needs of the child
Firstly, the parents must calculate the amount required per month to support their child. The calculation includes items such as food, clothing, school fees and medical aid. This calculation must consider the family’s standard of living.
The financial position of each parent
Parents must disclose their income and expenses. The parent with the higher net income will have to pay most of the maintenance. In most cases, both parents will have to contribute towards the maintenance of the minor children. So, for example, if the father earns twice what the mother earns, he will have to pay two-thirds of the maintenance, and she will have to contribute one-third of the maintenance.
Of course, a court cannot order a parent to pay maintenance that he/she cannot afford. If a parent cannot afford to pay maintenance, the court will order him/her to pay a lesser amount. If a parent has no income at all, he/she will not be required to pay maintenance, unless he/she owns significant assets which can be used to pay maintenance.
How to claim child maintenance
Claiming maintenance on behalf of a minor child is often a long and gruelling process. The process may start with negotiations between the parents without outside assistance. However, often, the parties will need to use a mediator and/or attorneys, and may ultimately land up in court. Let us look at the process in more detail.
A parent claiming child maintenance may first try to negotiate with the other parent. However, direct negotiations between the parties are rarely successful. Usually, there is simply too much hostility between them. It may be counterproductive for parties with a high level of conflict to attempt direct negotiations. So, unless parties have a particularly cordial relationship, they should seek the assistance of an attorney or mediator at the outset.
One way that parties may be able to settle their maintenance dispute is through mediation. The role of the mediator is to help the parties reach an agreement. A mediator is not a judge or an arbitrator. He does not make decisions for the parties.
Many attorneys also practice as mediators. Mediation has become increasingly popular. The law now requires that the parties attempt mediation before proceeding to court.
Several organisations provide mediation free of charge, or at a reduced cost. Two such organisations are “Pro Bono” and “Family Life Centre”.
If parties are unable to settle their dispute by mediation, they will have to engage with attorneys. Once appointed, the attorneys on either side will attempt to negotiate a settlement. Since attorneys know the law and are not emotionally involved with the case, they are often able to settle the case. However, this may take several months or even years.
The Maintenance Court
If the attorneys’ attempt to settle the case ultimately proves fruitless, the party claiming child maintenance will have no option but to go to court.
Fortunately, there is a special court for maintenance cases, with a relatively simple procedure and short duration. Due to the simple process, a party need not necessarily make use of attorneys (an enormous saving on legal fees).
The procedure at the Maintenance Court is as follows:
- Apply to the Magistrate’s Court closest to where you or your child lives.
- Complete form J101. Try to complete this form before you go to the court to avoid delays. In addition to the form J101, bring the following documents and information to the court:
- Copies of your children’s identity document and birth certificate;
- Copy of your identity document;
- Six months of bank statements;
- A list of your children’s monthly expenses;
- 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 payslip); and
- The name, surname and address of the other parent (referred to as the Defendant).
- The Maintenance Officer will investigate the case and try to mediate a settlement.
- If the parties cannot agree on the amount of maintenance to be paid by the Defendant, the Maintenance Officer will refer the case to the court for a hearing.
- At the court hearing, both parties give oral evidence before the Magistrate. The parties may cross-examine each other and call witnesses. After the Magistrate has heard all the evidence, he will decide if the Defendant must pay maintenance and how much.
When the Defendant fails to pay maintenance
If the Defendant fails or refuses to pay maintenance, you must report him to the Maintenance Officer. The court will order one or more of the following:
- Emoluments attachment order:
The court can order the Defendant’s employer to deduct a monthly amount from his salary, which will be used to pay maintenance for the child/children.
- Attachment of a debt:
Where there is money owed to the Defendant, the court may order the Defendant to pay this money to the Plaintiff for maintenance of the child/children.
- Execution (confiscation) of the Defendant’s property:
The court can order the Sheriff of the Court to confiscate and sell the Defendant’s property, both moveable and immoveable. The proceeds of the sale will be used to pay maintenance for your child/children.
- Criminal Prosecution:
Finally, the court may fine and/or imprison the Defendant for his failure to pay maintenance.
With Legal&Tax you’re not alone
We can help you claim for child maintenance to ensure that your children are cared for. Contact us for assistance.
Disclaimer: The content of this article was correct at the time of publishing, but the legislation or underlying information forming the basis of this article may have changed. You should always speak to a qualified Legal&Tax advisor before making any decisions.
Article sourced from Legal&Tax.
- Maintenance matters – Child maintenance
- Fathers’ rights in divorce – South Africa
- Section 21 of the Children’s Act – Fathers’ rights and maintenance
- Children born out of wedlock – The rights of the biological father
Natasha Ngwerume was admitted as an Attorney of the High Court of South Africa in 2012. She completed her LLB at the University of Kwa-Zulu Natal. Her interest in law... Read more about Natasha Ngwerume