Maintain your rights

 In Articles, Divorce, Child and Family Law

Child Maintenance and Maintenance Court Applications

Maintenance under South African law, is the obligation to provide another person e.g.: a minor with housing, food, clothing, education and medical care, or with the means necessary for providing these essentials. The legal duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

A child (person under the age of 18) must be supported or maintained by:

• His or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or
• His or her grandparents, whether or not the child’s parents were married to each other (this varies from one case to another).

Trying to Reach a Settlement in Terms of Child Maintenance Between Parents

A parent claiming child maintenance may first try to negotiate with the other parent, however, direct negotiations are not often successful.

Another way that the parties may be able to settle their maintenance dispute is through mediation, where the role of the mediator is to help the parties reach an agreement (many attorneys also practice as mediators). Mediation has become increasingly popular and the law now requires that the parties attempt mediation before proceeding to court. If parties are unable to settle their dispute by mediation, they will have to engage with attorneys.

Once appointed, the attorneys on either side will attempt to negotiate a settlement. If the attorneys cannot settle the case between themselves on behalf of their clients, the party claiming child maintenance will have to go to Maintenance Court (special court for maintenance cases with a relatively simple procedure and short duration).

 

Maintenance Court and Why Go?

Challenges arise when the child costs more to maintain per month than the parent who is supposed to pay maintenance is willing to pay. Sometimes the parent who is supposed to pay maintenance claims poverty or states that if he/she pays more, the other parent will use the money for himself/herself. The only way to properly resolve issues like this when the parties just can’t reach an agreement, is to go to Maintenance Court. Once a maintenance order is made, it becomes a criminal offense not to adhere to it. The court may even issue a warrant attaching property or salary.

Each Maintenance Court has a Maintenance Investigator who gathers evidence for Maintenance Court cases. The Maintenance Court can only make an order against a parent if there is evidence that he/she can afford the maintenance claimed, and that the amount claimed is fair. One should insist that the Maintenance Court instruct the Maintenance Investigator to investigate the financial affairs (salary, pension, medical aid, bank account, credit profile, social media, property search) of the other parent, especially if that parent does not provide the court with a copy of his/her salary slip and an outline of expenses. If the parent paying maintenance believes that the other parent is not spending the maintenance moneys on the child, then this is what needs to be investigated and proven. It is also prudent in these cases for the parent providing the maintenance to request that they pay certain debits directly e.g.: school fees, medical aid, doctors’ bills, and rent/bond in order to side-step any money management issues with the other parent.

Maintenance court procedure

Apply to the Magistrate’s Court closest to where you or your child lives in person

Complete form J101 (try to complete this form before you go to the court to avoid delays). In addition to the form J101, bring the following documents and information to the court:

Having these documents ahead of time and well filed and available to you will save you time and stress on the day.

Checklist

Copies of your children’s identity document and birth certificate;

Copy of your identity document;

Six months of bank statements;

A list of your children’s monthly expenses;

A list of your monthly expenses;

Proof of your monthly expenses (such as receipts for food purchases, electricity and rent payments);

Proof of your income (such as your payslip); and

The name, surname and address of the other parent (referred to as the Defendant).

What Next?

The Maintenance Officer will investigate the case and try to mediate a settlement. If the parties cannot agree on the amount of maintenance to be paid by the Defendant, the Maintenance Officer will refer the case to the court for a hearing.

At the court hearing, both parties give oral evidence before the Magistrate. The parties may cross-examine each other and call witnesses. After the Magistrate has heard all the evidence, he/she will decide if the Defendant must pay maintenance and how much.


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