With Maintenance talks on every TV Channel and women still suffering to figure out how the story really works, we have compiled a list of the most frequently asked questions regarding Maintenance.
How is maintenance paid?
The money can be paid directly into the applicant’s account or can be paid to the nearest maintenance official.
Can he claim maintenance from me?
Maintenance for women and children are the most common applicants the courts deal with, but remember, according to the act any person may claim maintenance if such a person is in need of maintenance from a family member, so yes, he CAN claim maintenance from you.
Until when must he pay for the child?
Maintenance must be paid from the birth or adoption of the child and for as long as the child remains dependent. This does not imply a clear-cut age of 21, because maintenance can be claimed for a child older than 21 who, due to sickness lost her/his job etc.
Who pays after a divorce?
Both parents remain responsible for maintenance towards the child and the court will determine maintenance according to the parents’ individual financial capabilities. I.e. if the mother earns more, the mother will have to pay more maintenance than the father.
How much maintenance can I claim?
The
amount, which is eventually determined by
the court, but it is influenced by three factors:
The need of the applicant
The ability of the maintenance payer
The standard of life, to which the applicant
is used.
Maintenance is meant to ensure that a certain
standard of living is maintained and therefore
it may include even the so called luxury items
such as sports equipment, clothes and medical
expenses.
Do unborn children have a right to maintenance?
Only once the child is born can the mother apply for a maintenance order. A seperate civil claim can be instituted for expenses incurred as a result of the pregnancy(such as hospital fees).
Do extra marital children have a right to maintenance?
The act does not differentiate between extra marital children and children born in wedlock. Child maintenance can be claimed from a child's mother and/or father. Even from the maternal and paternal grandparents where the parents are unable to contribute.
Must maintenance be paid for stepchildren?
According to the act natural parents and not stepparents should pay maintenance. However, when married in community of property, a parent's spouse's earning may be taken into account in court when determining the financial ability of the parent.
Are foster children entitled to maintenance?
No, as foster children are assisted financially by the state.
What happens if he doesn’t pay?
This will depend on whether he can’t or won’t. If he can’t, all the arrear maintenance will have to be paid as soon as he is capable of doing so. If he simply won’t pay, the court may order that maintenance be subtracted from his salary directly. The court may even allow claims against his pension fund or policies. By not paying maintenance, such a man is guilty of a criminal offence and as such, a criminal charge can be laid against him at the maintenance court.
What defense does he have if he really can’t pay?
The only acceptable defense is the lack of ability to pay. But inability to pay is only acceptable if it’s not due to misconduct on his part, or to an unwillingness to work and earn money to pay child or spousal support. If, for example, the money was lost through gambling or spent on other things, he would have caused his own lack of means and would still be liable.
What if he says he has a new family to look after?
This is not easily accepted as a valid defence in law, since the duty to support the previous family existed before the second marriage. He may apply to the court to have the maintenance amount reduced on the ground that he is no longer able to afford it. During the time that the court considers the application, the full amount is still due.
Can he deduct the money he spends on the children during weekends from the maintenance?
No, it is illegal.
What happens if he passes away?
The children, as dependants, have a claim against his estate, which enjoys preference over other claims against the deceased’s estate.
What maintenance am I, as mother, entitled to?
Contribution to the medical costs incurred
during childbirth.
A contribution to the maintenance of
the child since birth or adoption.
Support for yourself during the period
just before, during and immediately after
the birth. If he refuses to pay, or agrees
to pay but then fails to do so, you can
take the matter to the maintenance court.
Where oh where do I find this wonderful court (see question above)?
Every Magistrate’s Court in South Africa is also a Maintenance Court, which deals specifically with maintenance issues. Every Maintenance Court has a maintenance officer, who has special
powers to deal with maintenance problems.
The services of the Maintenance Court are
free to those who need maintenance. The state
pays for everything that needs to be done
to ensure that those in need receive the support
that is due to them. However, if you decide
to employ a lawyer, you will have to pay for
his or her services. The procedures of the
Maintenance Court are fairly simple and easy
to follow, and you shouldn’t really
need the help of a lawyer. But you
may wish to employ a lawyer if the
maintenance debtor has done so.
If you are a single parent (or are separated
from your spouse), and the other parent of
your child is refusing to pay you support,
your first step is to lay a complaint with
the Maintenance Court. Go to the nearest Magistrate’s
Court and ask to see the maintenance officer,
who will help you lodge your complaint.
You will need to bring along:
Your identity document
Your child’s birth certificate
A payslip to show what you earn
Bills and receipts to prove the living
expenses of yourself and your child (for example,
rent, school fees, groceries, transport costs
and medical bills)
The name of the other parent, and as many
details as you can provide about him or her,
including address, place of work, occupation,
income and property
A recent photograph of the other parent,
if you have one.The maintenance officer will
need all this information in order to help
you fill out the form so that you can lodge
a complaint. If you do not keep precise details
of your living expenses, you can still claim
for maintenance. The court will look at the
reasonable needs of your child when determining
maintenance.
