Applying for child maintenance
What is maintenance
Both parents have an equal duty to contribute towards the maintenance needs of their child. This duty exists whether the parents are married or divorced, or whether the child is adopted, a surrogate or born out of wedlock. A parent has the duty to provide for the reasonable needs of a child, including but not limited to:
- clothing; and
Parents have a duty to contribute to the maintenance needs of a child until the child has reached the age of 18 years and/or is self-supporting, whichever comes first.
Who can claim maintenance
A claim for maintenance can be lodged by a parent or guardian, on behalf of a child who is under the age of 18 years. Where a child is over 18 years of age, the child would need to make an application for maintenance in his/her own capacity, and the onus of proving his/her maintenance needs would rest on the child. If a child is self-supporting, he/she may not claim maintenance.
In instances where a parent has passed away, the child would still be able to lodge a claim for maintenance, but this claim would need to be lodged against the deceased parent’s estate.
In certain circumstances, where neither parent is able to make payment of maintenance, a claim for maintenance may be lodged against either the maternal or paternal grandparents.
How to lodge a claim for maintenance
In order to lodge a claim for maintenance, the person requesting maintenance would need to approach the court, and submit all forms to the maintenance clerk. Information such as proof of monthly income and expenses, and receipts should be submitted with the completed form.
The court would require the following documentation when lodging a claim for maintenance:
- birth certificate of the child/children;
- the applicant’s identity document;
- proof of residence;
- a divorce settlement, if any;
- proof of monthly income and expenses;
- the personal details of the parent required to pay maintenance such as their name, surname, physical and employment address;
- copy of the applicants 3-month bank statement; and
- any other information which the court may find useful.
Process after lodging a claim
Once the application has been reviewed, the applicant would receive a reference number. The maintenance officer would then have the duty of serving a summons on the Respondent (the person who is required to pay maintenance) to appear in court on a specific date to discuss the matter.
Where the parties reach an agreement, the agreement shall be made an order of court, and both parties would be obliged to abide by the court order.
If the parties are unable to reach an agreement regarding the issue of maintenance, then both parties would be required to appear in court (at a date determined by the court) and provide evidence and witness statements.
In this instance, the Magistrate will make the final order for payment of maintenance, and the amount to be paid.
Where a party disputes a claim for maintenance, the maintenance application may be defended. This would require the party disputing maintenance to appear at court on the date as determined by the court in its application papers.
A party may dispute maintenance either by themselves, or with the assistance of an attorney. In instances where parties are unable to reach a resolution regarding maintenance of a child, parties would need to prepare evidence to be submitted to court which includes:
- financial statements;
- witness statements; and
- any other information which would assist the court in making its decision.
Thereafter, the court may require both parties to submit their arguments orally. The court would make an order based on the principle of “the best interest of the child” and with regard to the financial circumstances of both parties.
Non-compliance with a maintenance order
If maintenance is not paid, the court can attach the responsible persons salary, as well as their investment accounts, and/or the court may auction their property or issue a warrant of arrest in order to ensure that payment of maintenance is made.
According to the Maintenance Amendment Act 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; or
- have their property or salary attached.
Where a party who is liable for maintenance cannot be reached, the court can issue an order to a cellphone service provider to provide the court with their contact details.
It should be noted that non-payment of maintenance, where an order is granted, is a criminal offence.
For more information on assistance or advice with lodging or disputing a claim of Maintenance, contact Rajaram Mvulane Attorneys at email@example.com or on 071 872-8797