In South Africa is it required that both parents of a child/ren are obligated to maintain them according to their needs.
Parents must attend to all the child/ren’s reasonable needs, which include, but are not limited to: housing, education, clothing, medical care etc. What will determine the child/ren’s reasonable needs will be the standard of living of the family, as well as consideration of the family’s income.
There are may be cases where one parent is in a greater financial position than the other. This, however, does not mean that the financially weaker parent is not obligated to pay towards maintenance.
When granting a maintenance order, a court will consider the joint duty of the parents, the reasonable and financial needs of the child/ren, as well as the parent’s ability to care for the child/ren and to what extent.
A parent’s duty to pay maintenance continues regardless of the child/ren’s age, and lasts until the child/ren is self-supporting, adopted or the parent/s have died. Once a child/ren has attained the age of majority (18 years), the duty shifts on to the child/ren to prove what further maintenance he or she will require. The child/ren will then pursue this matter.
If neither parent can maintain the child/ren, the duty to support the child/ren will pass on to the child/ren’s grandparents. If they are unable to support the child/ren the responsibility will then pass on to any siblings, provided that they are able to support the child/ren. In the case where a parent has died, the child/ren will have a claim against the deceased parent’s estate.
A monthly amount is typically paid to the primary caregiver of the child. The amount will increase annually according to the percentage change in the CPI (Consumer Price Index) on the anniversary date of either the divorce order or of the first maintenance order.
The parent must first apply for a maintenance order at a Magistrate’s Court where the child/ren is resident by submitting a Form A – Application for a maintenance order. The application must be accompanied by the following documentation:
- a certified copy of your Identity Document, certified copies of the child/ren’s birth certificates;
- A maintenance budget schedule;
- Proof of your monthly income and expenses;
- Three months’ latest bank statements and payslips;
- The full name and proof of the physical and/or work address of the person responsible for paying the maintenance amount; and
- If you were married, and are now divorced, a copy of the divorce order.
Once the application has been lodged, the claim will be investigated and the Applicant (being the person who applies for the order) will be given a notice setting out the time and date that the inquiry will be attended to.
The Respondent (being the person whom the order is to be against) will be notified of this date and will need to attend the inquiry. The inquiry is informal and the parties are invited to enter into settlement negotiations. The Respondent may consent to the maintenance claim or to a settlement agreement. However, if the Respondent has a dispute in respect of the claim, then a formal inquiry will take place.
A formal inquiry takes place in the form of a ‘mini trial’ before a Magistrate at the Court and both parties are to be present on the day. At the trial, the parties will be required to hand over relevant documentation, as well as give evidence under oath.
Once the matter has been heard, the Court will make an order in terms of past, present and future maintenance.
FAILURE TO PAY MAINTENANCE
When a party against whom a Maintenance order was made, fails to pay, in terms of such order for a minimum period of ten days, the other party may apply to the Court for authorisation to issue a Warrant of Execution. The Warrant of Execution must be issued by the Maintenance Court and the original Warrant plus a copy, must be handed to the Sheriff or Maintenance Investigator for execution. The person against whom a Warrant of Execution has been issued, may apply to the Maintenance Court to have the Warrant of Execution set aside or suspended.
The party may also make application for the attachment of emoluments in respect of the period for which the party failed to pay, and/or for future maintenance payments. The effect of such an Order is that the Respondent’s employer will be required to subtract the amount owing from the Respondent’s salary and to pay such amount to the Applicant.
A party may also apply to the Court for the attachment of debt owing to the Respondent, or attach any of his/her assets as well as any pension fund.
Failure to pay maintenance is a criminal offence and the Respondent may face a fine or imprisonment for up to a period of one year, or both. The Respondent may also be blacklisted.
In order to avoid punishment, the Respondent must show the Court that he/she was unable to pay as a result of lack of income or funds.
To this end, what is noteworthy is that all parents must take financial responsibility for their children otherwise they will face serious consequences.