The duty to support a child rests commonly on both parents and must be shared between them according to their means, to provide for clothing, housing, medical care, education, and recreation (where applicable). Section 15(3)(iii) of the Maintenance Act 99 of 1998 provides that the duty to support a child exists irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage and whether the parent has access or is denied access to the child.
The procedures of the maintenance court are relatively uncomplicated and may be summarized into the following three main points: Gathering information; applying for maintenance; and the Court Order.
The Maintenance Process
When gathering information, it is prudent to ensure that you get all the evidence you need for your application. That is: all sources of income for example your salary or wages, rental income etc and expenditure for example school fees, rent and municipal accounts.
Once you have gathered all the information, you can approach the maintenance court and make an application for maintenance. You may also approach an attorney who will attend to all the application forms and will advise you when you need to attend court.
Once the maintenance application is filed, a maintenance officer will issue a subpoena against the respondent and set a preliminary date for the respondent to appear.
At the first appearance the matter is dealt with by the Maintenance Officer who will attempt to broker an agreement between the parties. If the maintenance officer needs any information about the respondent, he/she can ask a magistrate to call anyone with information to appear before him/her. The maintenance officer may also task a maintenance investigator to obtain the requested information:
If the matter cannot be dealt with by agreement, the maintenance officer will arrange a formal inquiry in the maintenance court and the informal inquiry will be postponed to a date for the formal inquiry, and a magistrate will order the parties to appear on that date.
The purpose of the informal inquiry is to attempt, with the involvement of the maintenance officer, to resolve the dispute by mutual agreement. As mediator, the maintenance officer plays an active role in the process. Both parties must provide information regarding their financial positions, as well as any supporting documentation such as bank statements, salary slips and a list of monthly expenses.
If the respondent is cooperative, the maintenance officer, complainant and the respondent will then discuss the matter and attempt to agree how much maintenance should be paid. This is essentially a settlement negotiation whereby the maintenance officer mediates between the parties in order to arrive at a settlement. If agreement is reached the respondent will sign a J214E form in triplicate recording the details of the agreement and this will then be made an order of court.
If no settlement is reached, the maintenance officer will refer the matter to the maintenance court for a formal enquiry before a magistrate.
The formal enquiry takes place before a magistrate in a maintenance court, which essentially performs the functions of a civil court except that the Magistrate is given far greater rights to descend into the arena and to play an inquisitorial role. The normal rules of civil proceedings in a magistrate’s court apply.
At the formal inquiry, the complainant, maintenance officer and the respondent will put all the relevant information before the magistrate. Based on this the magistrate will decide how much money is required to meet the child’s needs, how this is to be apportioned to each of the parents and then issue maintenance order that will ensure that each party makes a fair contribution.
The order can include: The amount of maintenance to be paid, as well as a provision for yearly increases; the child be placed as a dependant on the medical aid scheme if there is one in place; where the child was born recently the magistrate can order the respondent to back pay all expenses, plus interest, relating to the child’s birth (the so-called “lying in expenses”) as well as all expenses relating to the child’s maintenance from the date of birth up to the date of the inquiry.
What happens if the party ordered to pay maintenance fails to pay?
If there is a failure to comply with the terms of the maintenance order, and the order remains unsatisfied for a period of 10 days, one can apply to the maintenance court for authorization to issue a warrant of execution, an order for the attachment of debt, or a garnishee order.
A garnishee order is a court order that is served by the sheriff of the court on the employer ordering the employer to make deductions from an employee’s salary or wages in settlement of a debt owed by the employee to a third-party creditor.
Essentially the maintenance defaulter will become blacklisted. Failure to pay maintenance is a criminal offence and if the defaulter is convicted, he may be sentenced to a fine or to imprisonment or both. The only defense for the defaulting party is to prove that he defaulted due to an inability to pay what was due.
Is there an obligation on grandparents to support a grandchild?
If neither parent can support or maintain the child, the duty passes to the grandparents (maternal and paternal). If a father or mother fails to pay maintenance, the primary care-giving parent can lodge a maintenance application against either grandparent (paternal or maternal).
Is there a duty on siblings to support a child?
If neither the parents nor grandparents can provide support, then the duty passes to the child’s siblings (sisters, brothers, half-sisters and half-brothers), in accordance with their respective means, but only if the child is truly in need.
Is there a duty on step – parents to support a child?
A step – parent is not by law obliged to maintain his/her stepchild.
It is important for both parents to understand that maintenance of children is a shared responsibility. This however cannot be used as a tool to deny access if maintenance is not paid. Both parents share rights and obligations in terms of their children and as such the best needs of the child should always be paramount! We will continue our family law segment with a guide to access in our next feature.
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