All you need to know about child maintenance
Maintenance in South Africa is regulated by the Maintenance Act, Act 99 of 1998.
When it comes to children, strong commitment and love are not negotiable. Regrettably there are parents that ignore their legal duty to maintain the well-being of their children. Considering this, the child maintenance system ensures that all parents honour their duty to maintain their children.
Ms Daphne Pick from The South African Women Lawyers Association gave more insight into how to claim maintenance for a child.
“Maintenance is the right of every child and the responsibility of every parent. No person, including a child, should suffer as a result of a responsible person withholding financial support. Claiming maintenance is actually an easier process than most people believe,” she said.
Maintenance in South Africa is regulated by the Maintenance Act, Act 99 of 1998.
How do I claim maintenance?
The person wishing to claim maintenance has to accumulate a list of income and expenses. Expenses have to include the child’s share of the communal expenses such as rental, water and electricity. The expenses exclusive to the child have to be set out clearly as well. The claiming party has to keep proof of all expenses, as same has to be proven on request thereto.
Once the applicant has the expenses together, the maintenance court in the jurisdiction within which the child resides must be approached. The maintenance officer will assist the applicant in completing the necessary application form. The respondent gets notified of the court date via service of the application by the police or the sheriff of the court. The respondent has to attend court to divulge his/her financial position to the court and needs to provide proof of his/her income and expense.
What happens on the court date?
On the court date the maintenance officer reviews the respondent’s financial position and advises what amount the respondent can contribute on a monthly basis.
Should the applicant not be satisfied with the respondent’s offer, the matter would be referred for a formal investigation. On the court date both parties’ financial positions would be considered before the court makes an Order.
How is the amount payable by each party calculated?
The court might disallow luxurious and unnecessary expenses. Typically maintenance will be payable in a ratio in accordance with the parties’ disposable income. For example: If the child’s expenses are R3 000 per month and the mother earns R5 000 and the father R10 000 – the ratio between the parents’ salaries is 1:2. The child’s expenses will be divided in three. The mother will be responsible for maintenance towards the child in the amount of R1 000 and the father would be responsible for payment of R2 000 towards the child’s maintenance on a monthly basis.
What happens if maintenance is not paid in accordance with the Court Order?
Once an Order is made, the party against whom the order has been made must ensure that the maintenance is paid on a monthly basis. Should the party default in paying, the party in whose favour the order was made may return to the maintenance court where the order was made and report the non-payment. The maintenance officer will assist the complainant to file a formal complaint. The court may decide to either proceed with a warrant for execution, a garnishee order against the defaulting party’s salary or an emolument attachment order. The defaulting party may be brought back to court to explain his/her non-payment as well.
From who can children over 18 years of age, students and other family members claim maintenance?
Unless provided in the divorce settlement, once a minor child turns 18 years of age, he/she must claim maintenance from the responsible party on application. A studying child may claim maintenance for study costs, accommodation, course necessities, traveling, clothing and the like to the extent that his/her parents can assist.
Maintenance may be claimed by any person who is financially dependent on another. A father may for instance claim maintenance from his children. Should a parent not be able to contribute to maintenance sufficiently, his/her parents may be requested by court to contribute to the maintenance of that child after the court is satisfied that the parent cannot contribute as needed.
Can maintenance be claimed against a pension fund?
Once an order has been made, the monthly contribution and/or arrears may be claimed from the responsible parent’s pension fund in the event that the responsible parent is no longer working.
No child, or any person entitled to maintenance should suffer as a result of a responsible parents’ non-compliance with his/her responsibilities.
SAWLA is a non-profit organisation of female lawyers established by the then Minister of Justice in consultation with a group of women lawyers. The purpose of SAWLA is inter alia, to transform the legal profession, empower women lawyers and give a voice to women lawyers, promote access to justice including protecting the rights of women, children and other vulnerable groups.
Follow SAWLA on: Facebook: SAWLA National or Twitter: @Sawla09951794
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