Maintenance Court & Procedure – South Africa

Maintenance Court & Procedure – South Africa

Legal Matters

With Maintenance court talks on every TV Channel and women still suffering to figure out how this really works, I have compiled a list of the most frequently asked questions and answers regarding Maintenance.

With Maintenance talks on every TV Channel and women still suffering to figure out how this really works, I have compiled a list of the most frequently asked questions and answers regarding Maintenance.

How is maintenance paid?

The money can be paid directly into the claimant’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 claimants 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 maintenance.

How much money can I claim?

  1. The need of the claimant
  2. The ability of the maintenance payer
  3. The standard of life, to which the claimant is used to.

Maintenance is meant to ensure that a certain life standard is maintained and therefore includes certain things such as sports equipment, clothes and medical expenses.

Do unborn children have a right to maintenance?

Absolutely!

Do extra marital children have a right to maintenance?

The act does not differentiate between extra marital children and children born in wedlock. Although the mother is usually the guardian of extra marital children, the unmarried man may apply to be appointed as guardian.

Must maintenance be paid for stepchildren?

According to the act natural parents and not step-parents should pay maintenance.

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 maintenance in arrears will have to be paid as soon as he is capable of doing so. If he won’t, the maintenance can be subtracted from his salary directly. The courts have also allowed claims against his pension fund or various policies. A criminal charge can also be laid against him at the maintenance courts.

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 convicted.

What if he says he has a new family to look after?

This is not easily accepted as a valid defense in law, since the maintenance order 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 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?

  1. Contribution to the medical costs incurred during childbirth.
  2. A contribution to the maintenance of the child since birth or adoption.
  3. 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?

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.