When it comes to children, strong commitment and love are not negotiable. Unfortunately, not all parents honour this duty, specifically 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/support their children.
According to legislation, a child is entitled to reasonable maintenance to provide for clothing, housing, dental and medical care, education and training, and recreation (where applicable).
Section 15 of the Maintenance Act no 99. Of 1998 stipulates the following:
15. Duty of parents to support their children
(1) Without derogating from the law relating to the liability of persons to support children who are unable to support themselves, a maintenance order for the maintenance of a child is directed at the enforcement of the common law duty of the child’s parents to support that child, as the duty in question exists at the time of the issue of the maintenance order and is expected to continue.
(2) The duty extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.
(3) (a) Without derogating from the law relating to the support of children, the maintenance court shall, in determining the amount to be paid as maintenance in respect of a child, take into consideration –
- That the duty of supporting a child is an obligation which the parents have incurred jointly;
- That the parents’ respective shares of such obligation are apportioned between them according to their respective means; and
- That the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.
(b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstance of the case.
(4) As from the commencement of this Act, no provision of any law to the effect that any obligation incurred by that parent in respect of any other child shall be of any force and effect.
Who has a duty to pay maintenance?
- All parents, whether married or not, living together, separated or divorced and parents of adopted children, are required to support the financial needs of their children.
- The biological grandparents may need to pay maintenance if the child’s parents can’t pay.
- Any person who’s responsible to raise the child, for example, a legal guardian, adoptive parents and grandparents of the child.
Important facts about child maintenance
- If you don’t know the whereabouts of your child’s other parent, maintenance investigators can trace them and determine their financial capabilities.
- Parents are required to pay maintenance until a child is self-supporting.
- The court determines how much a child needs.
- If maintenance isn’t paid, the court can take the money from the maintenance payer’s salary, their investment account, auction their property or issue a warrant of arrest.
- The maintenance amount can increase or decrease depending on the financial circumstances.
Why should I pay maintenance?
Known as the “duty to maintain” or the “duty to support”, all parents have the responsibility to ensure that their children have access to necessities such as:
- Shelter
- Clothing
- Food
- Medical Care
- Schooling
How to apply for child maintenance?
Visit your nearest Magistrate’s Court and take with you the following documents:
- Birth certificate of your child/children
- Your identity document
- Proof of residence
- A divorce settlement (if applicable)
- Proof of your monthly income and expenses
- The personal details of the parent required to pay maintenance such as their name, surname, physical and work address
- Copy of your 3-month bank statement
The application process:
- A maintenance clerk will submit your forms to the maintenance office for review and registration.
- Submit proof of your monthly income and expenses such as receipts for food purchases and electricity/rent bills along with your completed form.
- You will then receive a reference number.
- The Court will serve a summons (a letter instructing a person to come to court) on the respondent (the parent or guardian who should pay maintenance) to appear in court on a specific date to discuss this matter.
- The Magistrate will review the relevant documentation. He/She will then make an order and may decide to do so without requiring the parties to appear in Court.
- If the responsible person doesn’t consent to the issuance of an order, they must appear in court, where evidence from both parties and their witness will be heard.
- If the Court finds the person liable for paying maintenance, payments must be made. It’s a criminal offence not to pay.
How are payments made?
There are various ways that maintenance payments can be made, these include:
- At the local Magistrate’s Office or designated government offices.
- To the bank account of the primary caregiver.
- Directly to the primary caregiver.
- By means of deducting the money from the maintenance payer’s salary (known as a Garnishee Order), in accordance with the Maintenance Act of 1998.
- If your child is 18 years of age and not self-supporting, maintenance should be payed into the child’s bank account.
Enforcing a maintenance order
If a parent who must pay maintenance doesn’t pay, the primary caregiver of the child can take the following steps:
- Lay a formal complaint at the maintenance office
- Take along records of payment and non-payment as it shows how much is owed
- Ask the court to get the maintenance directly from their employer
The court grants permission to the defaulting parent to explain why they did not pay. However, without a good reason, the parent will either need to pay all the outstanding maintenance or they will go to jail.
Increasing or decreasing the amount of maintenance
If you are the primary caregiver of the child or the children, you can ask for the amount that you’ve paid for maintenance to be increased, if it’s not enough to provide for the child or children. You will have to complete an application form at the Magistrate’s Court and provide a statement detailing your income and expenditure.
If you are the maintenance payer and can no longer afford to pay the agreed maintenance amount, you can apply for a decrease order at the Magistrate’s Court where your maintenance order was made. You will have to complete the relevant form, submit a detailed income and expenditure statement and submit it to the maintenance officer.
The law and maintenance defaulters
According to the Maintenance Amendment Act (Act no. 9 of 2015), parents who default on their maintenance order can be held liable in the following ways:
- Be blacklisted at credit bureaus
- Be jailed for a period not longer than 3 years
- Be imprisoned with the option of paying a fine
- Have interest added to their maintenance arrears
- Have their property or salary attached
If the parent who is liable for maintenance can’t be reached, the court can issue an order to a cellphone service provider to provide the court with their contact details.
If you’d like more information or have any questions relating to this topic, please do not hesitate to contact The Legal Mom via https://giuliathelegalmom.wixsite.com/website/contact
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