Maintenance under normal circumstances
Ordinarily, a parent or legal guardian of a child can apply for a maintenance order at the Magistrate’s court at their district. This is governed by the Maintenance Act 99 of 1998 (the ‘Act’). According to section 15(1) of this Act, there is a common-law duty of the child’s parents to support a child who is unable to support themselves. Child maintenance orders are therefore directed at enforcing this duty. Both parents are liable to maintain the child in accordance with the child’s needs and expenses, and each parent may be ordered to contribute towards the child’s needs in proportion to their respective means.
The fundamental purpose of paying child maintenance is to cover costs for food, clothing, shelter, education and medical needs. Parent’s are obliged to maintain their child until the child is over the age of 18 years and is self-sustaining. Furthermore, a parent who has a maintenance order against them is liable for maintenance even if the other parent remarries, is involved in another relationship, does not allow the liable parent to see the child and or the other parent or the liable parent has more children at a later stage with someone else. Moreover, if the parent who the maintenance order is against passes away, the child will have a claim for maintenance against the deceased’s parent estate.
Where the parents both earn an income and they have shared custody of the child, they may agree that none of them pays maintenance towards the child; instead, they will equally contribute towards the needs and expenses of the child. Alternatively, without having to go to court to seek an order for child maintenance, the parties (i.e. parents of the child) can come to a cordial (verbal or written) agreement as to the maintenance contribution, on their own. The agreement will stipulate how much each parent is to contribute per month. This is more flexible in that the parents can vary the terms of the agreement as and when the child’s needs and expenses fluctuate. The interests of the child must always be on the forefront when these agreements are concluded.
The parents may also consent to a maintenance order by themselves without approaching the court. This usually happens through an informal inquiry. The parent requested to pay maintenance (i.e. respondent) must consent in writing to the maintenance order. A copy of the signed order must be handed to the maintenance officer.
According to section 6(c) of the Maintenance Amendment Act, 9 of 2015, a verbal or written maintenance agreement which was not made an order of the court may be brought to court to be substituted or discharged.
Where divorce proceedings are still pending, an applicant may bring a Rule 43 of the High Court Rules, which is an interlocutory application for the purposes of maintenance for either the spouse and/or child. Divorce proceedings may take too long; therefore, as a means to bring interim relief, the court may grant a Rule 43 application before the final divorce order is granted. The Rule 43 order cannot be appealed.
If the parents cannot agree on their own, the aggrieved parent can apply to the court for a maintenance order. Section 16 of the Maintenance Act states that a court may order any person liable (parent/guardian liable to maintain the child) to pay a sum of money which will go towards the maintenance of the child. According to section 15(3) of the Act, when a court makes an order in respect of the maintenance of a child, it will take into account, inter alia:
- the reasonable maintenance needs of the child;
- that both parents jointly have a duty to support the child; and
- that the parents’ respective shares of their obligation are apportioned between them according to their means or ability.
How to apply for a maintenance order
The parent seeking maintenance should apply at the Magistrate’s Court closest to where they reside with the child. The parent will need to take their ID (or a certified copy), proof of their monthly income and expenses, three months latest bank statements and details of the parent who should pay for maintenance (the respondent). The claim will be investigated by the maintenance officer, and the respondent will be served with a summons instructing them to appear in court on a specific date. If the court finds the respondent liable to pay maintenance, then the court will make an order to that effect.
Failure to pay maintenance
Section 26(2)(a) of the Act states that once the order is granted by the court, failure to comply with the said order for a period of 10 days, may result in the complainant applying to the maintenance court for:
- authorisation to issue a warrant of execution;
- an order for the attachment of emoluments/ garnishee order (which is the process of deducting money from an employee’s monetary compensation (including his/her salary); or
- an order for the attachment of debt.
Not paying maintenance as per the maintenance order amounts to contempt of court, which is a criminal offence punishable by a fine or imprisonment for up to 1 year, or both. The maintenance officer may also furnish the respondent’s particulars to companies providing credit. To escape punishment, the respondent must prove to the court that he/she could not pay maintenance due to a lack of money or income.
How the lockdown period may have affected maintenance obligations
Level 5 and Alert level 4 regulations
On 26 March 2020, the Minister of Justice and Correctional Services published the directives on the operations of the court on the Government Gazette. The regulations state, inter alia, that the operations of the court are limited to urgent matters only, in order to adhere to social distancing practices in the bid to eliminate the spread of the Covid-19 virus. These matters include hearings of the removal of children, harassment orders, domestic violence matters or bail application. During this period, the court has also been able to hear maintenance matters. The regulations state that only first-time maintenance applications will be heard as well as the enforcement of existing maintenance orders. This means that maintenance matters are operating as usual during the national lockdown.
No payment holiday: The needs of the child vs the inability of the respondent (liable parent) to pay during the lockdown
There is currently no payment holiday or deferment of payment of child maintenance available for the parent liable for paying same. As long as there is a maintenance agreement or maintenance order in place, the liable parent is obliged to pay the maintenance. This is the case even if the parent is unemployed during the national lockdown, has been put on unpaid leave, has received a pay cut or has been retrenched. The rationale is that the needs of the child do not come to a halt simply because there is a national lockdown. On the contrary, it can be argued that the needs of the child increase when they are at home as opposed to when they are at school. Children need more food, water, shelter, and electricity, and in some cases, data. Therefore, a parent who defaults on child maintenance means that the child would lack their basic needs during this period, especially where the child is mostly dependant on the maintenance.
Defaulting on maintenance is also likely to infringe on the child’s rights envisaged in section 28(1)(c) of the Constitution. Section 28(2) of the Constitution fortifies the principle that the interests of the child are of paramount importance in every matter concerning the child. This principle is primarily important because children are the most vulnerable members of our society. Until they can care and provide for themselves – which would normally be after they have reached legal status – they still require care from their parent/s or guardian/s. This is not to say that the circumstances of the parent are not taken into account during these unprecedented times. Therefore, there are a few solutions that a parent who is unable to pay child maintenance due to lack of income – and has no other assets to sell or loans to take in order to pay maintenance – during this time can consider.
If there is no maintenance order in place, and the parents rely on a cordial agreement to maintenance, they can come to an agreement that the liable parent can pay a reduced amount and pay the rest after the lockdown has been lifted or once they resume earning their usual income. If there is a maintenance order in place, the liable parent can apply to the High Court, Regional Court or the Maintenance Court for a variation or the setting aside of the order after the lockdown has been lifted. Where a good cause can be shown, the court may vary the order. According to the case of Roels v Roels  2 All SA 441 (C), the court assesses what a good cause is based on the merits of each case. This ultimately means that if the liable parent is unable to pay the full amount of the maintenance due to payment cuts, retrenchment, unemployment or unpaid leave due to the Covid-19 national lockdown, he/she can apply to the court for a variation of the maintenance order.
The applicant bears the onus of proving, on a balance of probabilities, that there is a good cause for varying the order. He/she must prove to the court that they are unable to pay the full amount as per the order. He/she must prove that he/she has no income, was unable to access any loans, has no assets to sell, and is destitute. Thus, if he/she can successfully show the court that he/she was not earning a full salary and had no alternatives to compensate for the lack of income in order to pay maintenance, he/she may be able to successfully obtain a variation of the order. The liable parent must investigate whether they can make alternative arrangements, such as apply for payment holidays with their banks or sell some of their assets, before defaulting on maintenance payment.
Rule 43(6) stipulates that:
The court may, on the same procedure, vary its decision in the event of a material change taking place in the circumstances of either party or a child, or the contribution towards costs proving inadequate.
In the matter of Grauman v Grauman 1984 (3) 477 WLD at 480 (C), the court stated the following pertaining to material change: Rule 43(6) should be strictly interpreted to deal with matters which it says has to be dealt with, that is, a material change taking place in the circumstances of either party or child. That relates to a change subsequent to the hearing of the original Rule 43 application.
In the case of Bruni v Bruni  ZAGPHC 14;  3 All SA 139 (W) the court granted an application of a variation under Rule 43(6) where the applicant argued that his financial circumstances had materially changed and he was no longer able to meet the obligations of the original Rule 43 order.
In conclusion, should the financial circumstances of the parent responsible to pay child maintenance change materially due to the Covid-19 national lockdown, and after the original Rule 43 application, the parent may be successful in a Rule 43(6) application if he/she can successfully prove, on a balance of probabilities, that his/her financial circumstances have been materially changed due to the Covid-19 national lockdown.
Author: Samukelisiwe Mbuthuma (LLB (UKZN), LLM Candidate (UKZN))
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