CHILD MAINTENANCE IN SOUTH AFRICA

The duty to support a child rests commonly to both parents and must be shared between them according to their means, to provide for clothing, housing, medical care, education, and recreation (where applicable). Section 15(3)(iii) of the Maintenance Act 99 of 1998 provides that the duty to support a child/children exists irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage and whether the parent has access or is denied access to the child.

The services of the maintenance court are free. The state pays for everything to ensure that those in need of maintenance receive the necessary support. Where one of the parties decides to employ an attorney, they will have to pay for the attorneys services. The procedures of the maintenance court are relatively uncomplicated and are as follows;

Step 1: Gather information

Make a list of all your monthly expenses and include;

  • doctors’ bills;
  • receipts for school fees, books and uniforms;
  • rent, water and electricity accounts;
  • groceries and clothing till slips;
  • proof of transport or any other travelling expenses;
  • if you are working, a copy of your most recent payslip;
  •  your ID document;
  • birth certificates of your child/ children;
  • if the child is at school, a letter from the school saying that the child attends the school;
  • if divorced, a copy of the divorce order; and
  • any information you may have about the respondent, for example, an ID number and home/work/postal address
  • details of amounts paid to servants
  • your salary slip
  • account from school
  • details of after-school activities and the costs thereof

Step 2: The application

Applications are made at the local Magistrate’s or family court (in the jurisdiction where the child/children reside) with a list and proof of expenses. The Complainant is to fill in the forms provided by the maintenance officer and attach supporting documentation for any income and expenses stated on the form.

Once the maintenance application is filed, a maintenance officer will issue a subpoena against the respondent and set a preliminary date for the respondent to appear.

Step 3: The investigation

At the first appearance the matter is dealt with by the Maintenance Officer who will attempt to broker an agreement between the parties. If the maintenance officer needs any information about the respondent, he/she can ask a magistrate to call anyone with information to appear before him/her. The maintenance officer may also task a maintenance investigator with:

  1. Finding the respondent and witnesses;
  2. Giving any maintenance court documents to the respondent; and
  3. Taking statements and gathering relevant information.

If the matter cannot be dealt with by agreement, after the investigation the maintenance officer will arrange a formal enquiry in the maintenance court and the informal enquiry will be postponed to a date for the formal enquiry, and a magistrate will order the parties to appear on that date.

Step 4: The informal enquiry

The purpose of the informal enquiry is to attempt, with the involvement of the maintenance officer, to resolve the dispute by mutual agreement. As mediator, the maintenance officer plays an active role in the process. Both parties must provide information regarding their financial positions, as well as any supporting documentation such as bank statements, salary slips and a list of monthly expenses.

If the respondent is cooperative, the maintenance officer, complainant and the respondent will then discuss the matter and attempt to agree how much maintenance should be paid. This is essentially a settlement negotiation whereby the maintenance officer mediates between the parties in order to arrive at a settlement. If agreement is reached the respondent will sign a J214E form in triplicate recording the details of the agreement and this will then be made an order of court.

If no settlement is reached, the maintenance officer will refer the matter to the maintenance court for a formal enquiry before a magistrate.

Step 5: The formal enquiry

The formal enquiry takes place before a magistrate in a maintenance court, which essentially performs the functions of a civil court except that the Magistrate is given far greater rights to descend into the arena and to play an inquisitorial role. The normal rules of civil proceedings in a magistrate’s court apply.

At the formal enquiry, the complainant, maintenance officer and the respondent will put all the relevant information before the magistrate. On the basis of this the magistrate will decide how much money is required to meet the child’s needs, how this is to be apportioned to each of the parents and then issue maintenance order that will ensure that each party makes a fair contribution.

The maintenance order

The order can include:

  1. The amount of maintenance to be paid, as well as a provision for yearly increases.
  2. An order that, if the respondent is a member of a medical scheme, the child be placed as a dependant on that scheme.
  3. Where the child was born recently the magistrate can order the respondent to back pay all expenses, plus interest, relating to the child’s birth (the so-called “lying in expenses”) as well as all expenses relating to the child’s maintenance from the date of birth up to the date of the enquiry.
  4. Where there is already a maintenance order in force which is changed, the court may substitute the existing maintenance order with a new order or discharge the existing maintenance order.
  5. The court may also make no order.

What happens if the party ordered to pay maintenance fails to pay?
If there is a failure to comply with the terms of the maintenance order, and the order remains unsatisfied for a period of 10 days, one can apply to the maintenance court for authorisation to issue a warrant of execution, an order for the attachment of debt, or a garnishee order.

A garnishee order is a court order that is served by the sheriff of the court on the employer ordering the employer to make deductions from an employee’s salary or wages in settlement of a debt owed by the employee to a third-party creditor.

Essentially the maintenance defaulter will become blacklisted. Failure to pay maintenance is a criminal offence and if the defaulter is convicted he may be sentenced to a fine or to imprisonment or have to both attached to it. The only defence for the defaulting party is to prove that he defaulted due to an inability to pay what was due.

Child maintenance against the deceased estate
The obligation for child support can be terminated either by the child’s death or when the child becomes self-supporting, but not by the death of the parent / guardian.

The right of a child to maintenance does not arise out of any principle of inheritance, but out of the family relationship between parent and child. The executor steps into the shoes of the deceased as from the date the executor receives letters of executorship he represents the estate. Any maintenance order that is already in place will also be binding on the deceased estate.

Child maintenance claims have preference over heirs, but do not have preference over creditors.

Is there an obligation on grandparents to support a grandchild?
If neither parent can support or maintain the child, the duty passes to the grandparents (maternal and paternal). If a father or mother fails to pay maintenance, the primary care-giving parent can lodge a maintenance application against either grandparent (paternal or maternal).

Is there a duty on siblings to support a child?
If neither the parents nor grandparents can provide support, then the duty passes to the child’s siblings (sisters, brothers, half-sisters and half-brothers), in accordance with their respective means, but only if the child is truly in need.

Is there a duty on step-parents to support a child?
A step-parent is not by law obliged to maintain his/her stepchild.

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