Written by S’negugu Dlamini, Candidate Attorney and checked by Jordan Dias, Associate and released by Maike Gohl
17 May 2021
According to legislation, a child is entitled to reasonable maintenance which is to provide for his/her clothing, housing, dental and medical care, and education. Both parents have a legal duty to maintain their children according to their respective means. Considering this, the child maintenance system in South Africa ensures that all parents honour their duty to maintain their children.
Who has the duty to pay maintenance?
Maintenance is a legal obligation to provide another person, in this instance, a minor child, with housing, food, clothing, education, and medical care, or with means that are necessary for providing the person with these essentials. This legal duty is called “the duty to maintain” or “the duty to support”.
The duty exists irrespective of whether the child’s parents are unmarried, the child is adopted, or the child is from a first marriage or later marriage. Generally, a child must be supported and maintained by:
- his or her biological parents, whether married, living together, separated, or divorced; or
- His or her grandparents (maternal and paternal) if neither parent can support or maintain the child; or
- Any person responsible to raise the child, for example a legal guardian, adoptive parents the child.
Whilst both parents have a legal duty to support the child financially, the exact contribution will be proportionate to what each individual earns. In determining what is appropriate, a court of law will assess the reasonable maintenance needs of the child and weigh them against the individual parent’s means and income.
In bringing an application for a maintenance order, you must complete and submit Form A: Application for Maintenance Order(J101) at the Magistrate’s Court in the district where you reside. The Maintenance Clerk will then submit the form to the Maintenance Officer for review and registration.
In addition to Form A, you will need to submit the following documents:
- a copy of your identity document;
- your contact details, such as telephone number and home and work address;
- certified copies of the child/children’s birth certificates;
- proof of monthly income (payslip) and expenses, such as receipts for food purchases, electricity or rent etc;
- three months bank statements;
- full name and proof of the physical and/or work address of the person responsible for paying the maintenance; and
- a copy of Decree of Divorce (in the case of divorce).
Once you have been given a reference number, the Magistrates’ Court will subpoena the Respondent (parent or guardian against whom a maintenance order is sought) to appear before the court on a specified date. The Respondent then has a choice either to agree to pay the maintenance, as claimed, or contest the matter in court.
If a settlement agreement is reached, the Magistrate will review the documentation and an order will be made. If no agreement can be reached or the Respondent does not consent to the granting of the order, he/she must appear in court, where evidence from both parties will be heard, normally with regard to the financial situation of the parties. Witnesses are allowed in these proceedings were necessary.
The Law and Maintenance Defaulters
On 9 September 2015, the Maintenance Amendment Act 09 of 2015 was passed (“the Act”). The Act put into place remedies to deal with those who fail to comply with their duty of maintenance.
Briefly, the Act inter alia provides that:
i. should a person default on their maintenance order, it is now lawful to hand over their personal details to a credit bureau, which will result in the maintenance defaulter becoming blacklisted;
ii. criminal charges may be brought against a person who fails to pay the maintenance as stipulated by their maintenance order and they may face jail time not exceeding three years and/or a fine; or
iii. maintenance applications can now be served via electronic email as opposed to only in person by the sheriff of the court, the maintenance investigator, or the police.
Parents have a legal duty to maintain their children regardless of whether they are married, living together, separated, or divorced. The law sets out, in detail, the process which one needs to follow when applying for a maintenance order and the consequences for defaulters.
When granting a maintenance order, the court will consider the joint duty of the parents to maintain the child, the reasonable and financial needs the child and the parent’s ability to pay the maintenance amount and to what extent.