Many South Africans are vulnerable to circumstances due to their lack of knowledge on what their rights are. Many of them are parents and as we all know, not all relationships or marriages work out, this is where child maintenance comes in. If you are part of the select few who can afford professional legal counseling then your lawyer will educate you on your legal position. However, for the rest of society, they may not feel like they have the means or power to exercise their rights. I hope this article informs many on the issue of the maintenance and child law.

In our law, the ‘best interests of the child are paramount’ and will always be the most important determining factor. Parenting is something that requires two parties to work together to promote and protect the best interests of the child. When a relationship/marriage/union/life partnership between two parents ends or doesn’t even start, these interests don’t disappear. A mother or father maintains his or her right to be involved in his or her child or children’s lives no matter if he or she has care of contact of the child. The Children’s Act has changed the word ‘custody’ to care.

Parental responsibilities and rights refer to:
  • Care for the child
  • Maintaining contract with the child
  • To act as a guardian of the child
  • To contribute to the maintenance of the child

A parent is expected to continue to nurture the growth of the child, no matter what. No parent can unduly restrict or limit the other’s access to the child unless ordered by the court or any other rule or law. As I’ve said, child maintenance is required no matter what the circumstances are. When parents are together, this operates less formally but sometimes the nature of the relationship among parents may call for external intervention.

What is ‘care’?

Care involves providing the child with a suitable home and living conditions that are conductive to the proper development of the child’s health, well-being and growth. This includes protecting them from abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or other hazards. Respecting, promoting, protecting and securing the fulfillment of and guarding against any infringement of the child’s right by:

  • Promoting their education
  • Guiding their behavior
  • Accommodating their special needs
  • Ensuring the child’s best interests are the overriding concern in all matters affecting the child
What is ‘contact’?

This involves maintaining a good relationship, communicating regularly, visiting the child or being visited by the child or other electronic forms of communication. Therefore one parent may have care while the other has contact. However it is possible for parents to co-exercise parental responsibilities and rights. The co-holders of parental responsibilities and rights can act without consent of the other parent. However they aren’t allowed to surrender or transfer these responsibilities but they can make an agreement with the other parent to exercise any or all on their behalf.

Obtaining child maintenance from the other parent requires an application to the nearest magistrate’s court with the following documentation: birth certificate, ID, proof of residence, divorce settlement, complete form, proof of monthly income and expenses, personal details of the other parent and copy of your bank statement. The documentation will be processed and the court will serve summons on the respondent. They will review the relevant documentation. The magistrate will review documentation and make a ruling. If the respondent doesn’t consent to issuance of an order, they must appear in court where both parties’ evidence will be presented. If the court finds that the respondent is due to make payments then such order will be made.

What is reasonable will depend on the family’s standard of living, income and the cost of living. Maintenance usually comprises of monthly cash payments to the parent with primary care which are made in advance, on or before a certain day of every month depending on what is convenient for the primary care parent, by way or a debit order, electronic transfer. It is subject to increase annually. This payment is used to cover medical, educational and tertiary educational costs.

What are the costs?

Medical costs are any medical, dental, surgical, hospital, orthodontic and ophthalmological treatment. As well as physiotherapists, occupational therapists, speech therapists, practitioner of holistic medicine, psychiatric, psychologist and chiropractor. One parent may put the child on their medical aid and if it doesn’t cover then they’ll pay in ratio according to their means. Educational costs include but aren’t limited to all tuition, pre-school, aftercare fees, school outings, camps, school lunches, extracurricular activities, sport activities, club fees, sport tours, school books, uniform, stationery and any other equipment needed by the child or related to school.

Tertiary educational costs, a parent is responsible for all or part of the reasonable costs of tertiary as long as child shows due diligence and continues to make satisfactory progress. These may be university fees or any institution of higher learning attended by the child, accommodation and travel/transport expenses, books and equipment needed. The age of maturity is eighteen however the duty to support extends beyond this and the child can claim maintenance from non-resident parent. Just because a child is working doesn’t mean that they are self-sufficient.

The court will consider the reasonable maintenance needs of the child, both parents jointly have a duty to support the child and the parents’ respective shares of their obligations and apportioned between them according to their means or ability. Both parents must support the child proportionally according to their means. It rests on both parents and they may elect to make equal payments.

What happens when the other parent doesn’t pay maintenance?
  • He or she can be blacklisted by the Credit Bureau
  • As this is a criminal offense, he or she could be subject to less than three years in prison without the option or a fine
  • Interest could be added onto the maintenance arrears
  • Property or salary attached
  • If the parent cannot be traced, the court can issue order to the cellphone service provider to provide court with their contact details.
  • Complainant may apply to maintenance court where respondent is resident for: authorization to issue a warrant of execution; an order for attachment of emoluments or order for attachment of debt

Contrary to popular belief, a parent’s opinion of the other doesn’t affect the child’s right to maintenance even if he remarries, has more kids, is involved in another relationship or doesn’t see the child. An application to amend the current maintenance may be made. The duty continues until the child is self-supporting, adopted or dead. At eighteen, the onus is on the child to prove the amount needed. If parent dies, the child can claim from the deceased estate.

Grandparents

If neither parents can support or maintain the child then that buck passes to the paternal or maternal grandparents. The parent with primary care can lodge an application against the maternal or paternal grandparents. If neither parents nor grandparents can maintain the child then the buck passes to the siblings which also includes half-siblings–brothers. However step parents aren’t obliged by law to pay maintenance as duty to support rests on blood relationship and thus a maintenance order cannot be made on them.

Can parents agree to a maintenance order?

They can consent to a maintenance order. The respondent must consent in writing to maintenance order and a copy must be delivered to maintenance officer. The respondent doesn’t have to be there but copy of order must be delivered to him and he must acknowledge receipt thereof.

Reduction of a maintenance order

Respondent can apply to courts for a reduction. It’s subject to a financial interaction and the other party’s circumstances will also be taken into account. If the respondent is unemployed then the enquiry will be postponed to allow him to find employment.

Employer must sign a form proving that employment was sought. If he or she has a hire-purchase agreement then the magistrate can attach the furniture and sell it to pay the maintenance. The complainant must inform maintenance officer about any such agreements. The primary care parent may get a child support grant from the Department of Social Development.

The respondent can appeal to the High Court by serving a notice of intention to appeal given to the clerk of the maintenance court and delivered to the other party within twenty days of order being made. The magistrate who made the order then has 14 days in which to give a statement to clerk of maintenance court setting out his or her reasons for the order. If applicant cannot afford legal representation, they must inform the clerk of the maintenance court who will approach to the Director of Public Prosecutions with a copy of the relevant documentation. The Director will then decide whether to assist in appeal. This application doesn’t suspend the payment of maintenance unless an order is made against finding that applicant is legally liable to pay maintenance. If court changes the original order at appeal, it will stipulate that revised maintenance, if any, only be paid from date of the appeal. Appeal cannot be noted against order that was made by consent and provisional order relating to costs of scientific tests regarding paternity and order by default.

In conclusion, I hope that you find this article informative and enlightening on the matter of child maintenance. Children are entitled maintenance up to the age of eighteen but this doesn’t mean that the duty vanishes thereon after. Child maintenance comes to an end when a child is able to take care of themselves and are self-sufficient.

By AZS Biyela LL.B (UJ)

Comments
  • mukhethwa
    May 25, 2020

    A very insightful article, I am learning a lot from the sister in law.

    much love

    Reply

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