Children are a blessing and before they are even born, your primal apprehension is to safeguard your child and provide them the very paramount of what life can offer. As soon as it comes to our children love is transparent and imminent.
One of my best friends got married and had a child at the young age of twenty one. Unfortunately the marriage did not work out resulting in divorce and her being a single mother. She sacrificed and gave so much to her child, placing herself last and her child’s best interests first. She lived for her child and at the age of 34, she continues to place her love and devotion of her child above her own. For thirteen years, she was emotionally and financially being bullied by the father of the child, but remained quiet as she feared that he would act on his threats of taking the child away from her as well as that he would stop paying his minimal portion of maintenance. She struggled financially over the years and as much as she pushed herself, the emanate turmoil of her mental and emotional state was being effected. She eventually realised that her child would eventually see this and before she hits rock bottom she decided that she would “fight back” and lead by example, to show her child to stand up for herself and say “I have a right to live and be happy and that emotional and financial threats is not right ”.
I have at many attempts tried to explain to her that as a father, he is also responsible, but finally she took a step back and realised that she was not alone and that there is a way to “fight back” for the best interests of her child. Child maintenance problems is one of the most common problems that parents have to endure after divorce or being single parent.
To all those in this situation, you are not alone and that there is a means to rectify such situations regarding obtaining maintenance for your child. You do not have to struggle to ensure that your child is properly cared for financially as well as maintaining the well-being of your child. The courts provide assistance in this regard and if you are unable to obtain legal aid or obtain monies to institute such action in courts, you are able to do this matter on your own without the assistance of an attorney, but this is to be taken with due caution as depending on circumstances, the procedure and rights could be tricky.
To provide some guidance to your rights and procedure of the legal system of South Africa, I have provided some useful points to note below.
The most primary objective as a parent is to ensure that the best interests of the child are placed as priority. The courts consider this as one of the most important aspects when children are involved in any matter brought to the Court for assistance.
To establish what the best interest of the child is, one refers to the Children’s Act No. 38, 2005 CHILDREN’S ACT, 2005.
“ Best interests of child standard
(7) (1) Whenever a provision of this Act requires the best interests of the child standard 25
to be applied, the following factors must be taken into consideration where relevant,
(a) the nature of the personal relationship between-
(i) the child and the parents, or any specific parent; and
(ii) the child and any other care-giver or person relevant in those
(b) the attitude of the parents, or any specific parent, towards-
(i) the child; and
(ii) the exercise of parental responsibilities and rights in respect of the child;
(c) the capacity of the parents, or any specific parent, or of any other care-
giver or person, to provide for the needs of the child, including
emotional and intellectual needs;
(d) the likely effect on the child of any change in the child’s circumstances,
including the likely effect on the child of any separation from-
(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other care-giver or person, with
whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents,
or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
the need for the child-
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture
(g) the child’s-
(i) age, maturity and stage of development;
(iii) background; and
(h) the child’s physical and emotional security and his or her intellectual,
emotional, social and cultural development;
(i) any disability that a child may have;
(j) any chronic illness from which a child may suffer;
(k) the need for a child to be brought up within a stable family environment and,
where this is not possible, in an environment resembling as closely as possible a caring family environment;
(l) the need to protect the child from any physical or psychological harm that may be caused by:
(i) subjecting the child to maltreatment, abuse, neglect, exploitation or
degradation or exposing the child to violence or exploitation or other
harmful behaviour; or
(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment,
(m) any family violence involving the child or a family member of the child; and
(n) which action or decision would avoid or minimise further legal or
administrative proceedings in relation to the child.”
Noting the above, it is important to further note that quoting from just one act is not suffice. One needs to read it in conjunction with Divorce Act 70 of 1979; Maintenance Act 99 of 1998 and most importantly the Children’s Act depending on the situation you are faced with.
In dealing with child maintenance, the Maintenance Act 99 of 1998 (hereinafter referred to as the “Act”) is of much significance. In terms of the Act, a child is entitled to equitable maintenance in aspects as to the provision of clothing, accommodation, dental and medicinal care; education etc. Such equitable maintenance will be discussed in detail below.
The Act further stipulates that both parents have a responsibility to maintain the child. The obligation exists regardless of whether the child’s parents are married, living together, separated, or divorced or during divorced proceedings; the child is adopted or whether the child is from a former marriage or other marriages thereafter. This aspect will be discussed briefly in this article.
2. CHILD MAINTENANCE IS TO FINANCIALLY SUSTAIN CHILDREN
It cases with regards to non-custodial parent, is common for a heated reaction of a non-custodial parent to ‘pay maintenance’ due to the issue that he is paying too much.
It is understandable that coming to an arrangement on the aggregate of maintenance a parent ought to pay can turn out to be an exasperating, long and challenging duty. As soon as deciding how considerable maintenance precisely should be compensated, one will look at the judicious financial prerequisites of the child, bearing in mind the first family’s pre divorce standard of living and then dispersed by the parents in proportion to what they earn.
Defining how much maintenance ought to be rewarded is to be guided by the reasonable economic needs of the child involved, noting the pre-divorce standard of living; the pre-divorced circumstances such as when one parent halts their pursue of further higher education to maintain a child when the other parent failed to do so at the time. Thereafter one need to establish how each parent must be responsible for the child according to his or her means by noting the salaries of each parent and then apportion the child’s costs proportionally between the parents based on the salaries. For example, if one parent earns more than the other parent, then their contribution will be more than the other parent. It may seem unfair, but after reading below it should provide a reasonable understanding hereto. This is not so stress-free to put into practice.
It’s perceptibly vigorous to have a precise knowledge of what individual parent grosses and expends monthly, and here is frequently where the misfortune flinches.
2.1. Revenue and Expenditures
Maintenance may need to be adjusted frequently, depending on the fluctuating needs of the child.
In order to establish the financial prerequisites of a child are, kindly note the following:
(a) Firstly, the prerequisites of the child estate need to be established. This will typically include a roof over his head, food, schooling, medical costs etc. A child, which is use to a certain standard of living, should be expected to be maintained the same in theory.
(b) Once the amount of maintenance has been established, the need to establish which part of that amount each parent is liable for is done by calculating the portion of a parent salary in comparison with the combined salary of both parents.
(c) The final step in establishing the amount of maintenance that a parent is liable for, would be affordability. The court will have a look at the finances of the parents to establish whether the parent can in fact afford it. You need to note, however, that the court will not allow the parent to maintain a luxurious lifestyle at the expense of the child. If the court finds that the parent cannot afford the maintenance to his first family, the court will look whether the parent can eliminate some luxurious expenses from his personal budget.
A child is entitled to reasonable maintenance and should not be abused above that of which the parents are unable to afford. The parent and child’s expenditures should be listed separately so that the parent’s expenditures are never confused with the child’s, and supporting documentation is required. Just stating a list is not sufficient. A financial investigator/Officer could be appointed to go through documentation, investigate (in detail) business owned enterprises and income receivable to confirm that no “monies” are dishonestly being hidden from the “books”.
Here are some examples of what it considered when evaluating child maintenance, namely:
2.1.1. Medical expenses
Rendering to the parent means, parents must contribute, but not limited to for any medical, dental, surgical, hospital, orthodontic and ophthalmological treatment required by the child, as well as any further amounts or other costs related thereto.
2.1.2. Educational costs
Scholastic costs generally contain, but are not restricted to, all pre-school and aftercare fees, school fees, further tuition fees, school outings, camps, school lunches, extra-curricular school and sport activities, all extramural activities in which the child partakes, together with club fees and sport tours (and the travel and lodging expenditures associated thereto), school books, stationery, uniforms and any gear (as well as PCs) necessary for the child at or connected to school. As mentioned, such costs are met to the rendering and affordability of the parents incomes and revenues available.
2.1.3. Tertiary educational costs
Parents are obliged to pay all or part of the rational costs of the child’s tertiary education, for as long as the child shows due persistence. Such costs can include accommodation and travel/transport expenditures and any books and gear necessary.
2.1.4. Accommodation Costs:
An expense that needs to be taken into consideration is housing and the maintaining of a functional household. This is not a permanent rule, but it would usually is apportioned as one part of this expense to the child and two parts to the parent.
In some cases where children are placed in boarding school, it is a notion that the non-custodian parent usually then regards that payment of the portion of housing and maintaining thereof should be deducted. It is my view that although the child is not permanently residing during the course of the week with the primary care-giver, it is essential that the primary residence is continuously running as there should be a “functioning” household to return to, such as continuous water availability; electricity availability; petrol allowance availability etc. My reasoning is simple, as the primary care giver, she or he should be on call in emergency or unforeseen circumstances. For example, there could be situations which arises in which as the primary care giver, it is the primary responsibility to be available should child require urgent attention, of which could mean that should the child during the course of the week need to return home due to illness or other reasoning, the primary care giver should be prepared and be available, just to name one example.
Such costs should not be a reason for failing to continue to pay the monthly household sustainability.
2.1.5. Other Costs incurred
Some other further examples of costs:
Pocket money, savings, clothing, entertainment, pets, petrol, Insurance, Holiday, savings for university fees
2.2. CALCULATING MAINTENANCE
The aggregate of maintenance is determined by establishing the following:
2.2.1. What are the child’s monthly costs?
The child’s direct and indirect costs need to be calculated and determined.
Direct costs is costs of which is credited only to the child.
Indirect costs are costs which are essentially to be allotted amongst all the individuals living in the household. Such examples of indirect costs would be groceries, rent, electricity, telephone, transport etc.
2.2.2. What the parents are capable to have the funds for to contribute?
Once the total costs for the children are established it is then divided among the parents pro rata in ratio to their earnings or revenue.
3. SUPPORTING TWO HOUSEHOLDS
Maintenance costs can escalate namely because, before the family was living in one home, now the non-custodial parent is subsidising towards two homes. This is somewhat often disregarded by non-custodian parents, who assume they can remain shelling out the equivalent aggregate as when they were wedded.
When a non-custodial parent remarries, he/she cannot use the justification of the obligation to support a second spouse as a motivation for decreasing or neglecting to make payment of the maintenance allocated in respect of the children of an initial matrimonial regime.
Firmly speaking, wherever a father re-weds and then has to sustain a ‘second’ family, this monetary responsibility shouldn’t influence adversely on his ‘first’ household. Accordingly, for example, a father cannot place onward the needs of his second wife as a motive for reducing the maintenance allocated in respect of the children of his first wife.
Although it is essential that children born of the second marriage should be taken into consideration, it should not affect the best interests of the child born of the first marriage. The reality is, however, that remarriage does not affect the duty to support children from a previous relationship. If the parents have other children, it will be taken into account. Nonetheless, parties cannot use self-created reduced situations to decrease their maintenance responsibilities. A father may not raise a defence that the needs of his second wife and children are a reason to reduce maintenance in respect of the children of his first wife.
4. IF THE ONE PARENT IS UNABLE TO PAY MAINTENANCE:
4.1. UNEMPLOYED PARENTS:
With the high unemployment rate in South Africa, the possibility of unemployment could arise but does not indemnify the parent from providing child maintenance. In some cases, where such situation arises, then the primary care giver may approach the Court to request the Magistrate to proceed with an examination of the assets that the unemployed parent has of which would then the attached and sold, depending on the circumstances. This is discussed briefly in this article. The Magistrate will instruct the unemployed parent to attempt to find employment, of which proof of seeking employment must be provided at the next Court appearance.
If the unemployed parent obtains employment, then a form signed by the employer needs to be provided to court
During this period that the unemployed parent is seeking employment, the primary care giver can approach the Department of Social Development to obtain a child support grant.
It is recognized in South African law that if neither parent can contribute economically in supporting or sustaining the child, the obligation may pass on to the grandparents, both maternal and paternal, depending on which parent is unable to afford maintenance. In such situations, the parent holding primary care is permitted to make an application in the Maintenance Court, for economic support from that parent’s parents. The Maintenance Court will follow the same test in establishing as to whether the grandparents are able to contribute financially towards the maintenance of their grandchild by attending to financial inquiry before making any court order.
4.3. Siblings of the Child:
It rarely happens, but if neither the child’s parents nor grandparents are able to afford economic sustenance, then the obligation falls onto the child’s brothers or sisters; half-sisters and half-brothers . This provision would evaluate the contribution that the siblings are able to contribute by assessing their respective means; if the child is actually in need and that the child who claims maintenance is definitely impecunious.
4.4. Deceased Estate of the parent:
In circumstances where a parent dies while a child is still dependent relative, then the primary care giver is able to place a claim against the estate of the Deceased parent for child maintenance.
This claim has preference above beneficiaries, but not over creditors. The claim exists in so far as the child is unable to maintain him/herself.
If the Deceased Parent had a Last Will and Testament, provision would usually have been made to make available sufficient monies for the child. In such circumstances the appointed the Executor, who was appointed to administer the Estate of the Deceased, will give effect to the terms of the will.
In instances where the Last Will and Testament does not make provision for the maintenance of the child, then the primary care giver of the child may submit a claim to the Executor of the Deceased Estate.
5. SUPPORTING CHILDREN REACHING 16/18 OR UNTIL THEY ARE SELF-SUPPORTING
The obligation to pay maintenance endures irrespective of the child’s age, and endures up until the child is self-supporting, adopted or deceased. South Africa maintenance payments normally terminate as soon as child:
5.1. Finished their last year of education, be that at the age of 18 or completed tertiary education. Although 18 is the age of majority, the obligation to continue to claim child maintenance can carry on after the child turns 18, but in these instances, the child needs to formerly claim maintenance directly from the non- custodial parent.
5.2. At the death of one of the child. The responsibility to maintenance terminates at the child’s death but not on the parent’s death, in which case the primary care giver can lodge a claim against the deceased parents estate.
6. REFUSING TO CONTINUE TO PAY MAINTENANCE:
The parent is still obliged to make payments of the monthly child maintenance (with the annual increase) until such time as court order directs otherwise. Such child maintenance is free from deductions and no amounts may be deducted without consent from the parent entitled to such maintenance.
Criminal remedies in cases in which individual that fails to make payments in accordance with a maintenance order is that of criminal prosecution in which the non-paying parent may be found guilty of an offence and can result in a conviction in which the non-paying parent may be liable to pay a fine or even be imprisonment.
Civil remedies may include:
6.1. obtaining an order to have the non-paying parents’ information given over to the credit bureau. This will result in the prevention of any further credit being granted to the non-paying parent.
6.2. authorisation to issue a warrant of execution of movable property and immovable property. In terms of attachment, the Maintenance Court can issue a warrant of attachment which permits the Sheriff of the court to demand the unpaid monies from the non-paying parent. If the monies are not paid, the Sheriff will catalogue of all the movable goods at the home of the defaulter and then may even thereafter remove the goods, in order to sell them on auction and pay over the monies obtained at the public sale. The same principle applies if the non-paying parent owns a home.
6.3. an order for the attachment of emoluments (garnishee order): If the parent is employed, the primary care giver can make an application to the Maintenance Court for a garnishee order to be issued, which if granted, would result in ordering the employer of the non-paying parent to withhold the maintenance amount from that non-paying parent’s monthly salary, and to pay the monies straight to the primary care giver.
6.4. an order for the attachment of debt : If someone owes the non-paying parent monies, the court can order that the creditor, whom owes monies to the non-paying parent, to pay monies over to the primary care giver.
Some non-custodial parent withholds or refuses to make payment of maintenance if the primary care giver remarries; is involved in a new relationship; does not allow the non-custodial parent access to the child; and/or later has more children.
The obligation to pay maintenance and the right of access to your child is two separate issues and should be dealt with separately.
7. Court application:
For most primary care givers, the thought of approaching court is daunting. It can not only take an emotional and mental strain during this period, but also a financial burden as in most cases individuals are unable to obtain finance to approach an attorney. For such individuals there are financial aid means of obtain an attorney to attend to the matter pro-bono or request for asssistance on legal aid provided to the public, subsidized by the Government. Kindly contact the Law Society of South Africa to obtain details of where can obtain such services.
Should you qualify for such “free-service”, you can still attempt to handle the matter on your own.
I shall discuss briefly some guidance that should assist you herein.
7.1. WHICH COURT TO MAKE AN APPLICATION:
In order to establish in which court you need to make the application for maintenance, the primary care giver should contact the nearest Court. After confirmation of which Maintenance Court is obtained, the primary care giver should contact the Maintenance Court to confirm which documents are required for your application. Such documents are usually the following:
· Birth certificate of the child in need of maintenance;
· the primary care givers identity document and proof of residence;
· if divorce settlement was made it should also be provided;
· a list with proof where possible of the primary care givers monthly income and expenditures such as receipts for food purchases and electricity/rent bills,
· a copy of the primary care givers bank statement;
· the details of the non-paying parent of which such details would include the full name, surname, physical address as well as the work address
7.2. THE APPLICATION PROCEDURE:
The application procedure is a long process and depending on the circumstances, it can get confusing, but I will attempt to provide a basic simplified means of guidance.
Firstly you will approach the relevant Maintenance Court with the aforementioned documentation. The Maintenance Court Official, known as the Clerk of the Court, will provide you with a form in which you would complete. Such form shall then be submitted to the Maintenance officer for review and registration of the application. Hereinafter a case number will be provided together with a date to attend court.
A summons will be issued out of the Maintenance Court and forwarded to the sheriff of the court to serve on the non-paying parent. A summons will contain the details of why attendance is required and instruct the non-paying parent to come to the Maintenance Court on the date allocated on which it will be the date where evidence from both parties and their witnesses will be heard.
The Magistrate will review the relevant application and then make an order. If the Maintenance Court finds that the non-paying parent is liable to pay maintenance and order of court will be granted. Hereafter the non-paying parent must make payments in terms of the Order granted. Failing to do so, shall be that of contempt of court which has civil and criminal implications.
7.3. APPEALING THE MAINTENANCE ORDER:
Appealing an order is an application that is required to be brought before the Court. By failing to make payment does not qualify as an appeal.
A parent can appeal the maintenance order within twenty days of when the original order was made. Although the parent is appealing the maintenance order, payment in terms of the order must still be effected and not withheld. An appeal does not interrupt the order granted for payment of maintenance, as the parent is still legally liable to pay maintenance
7.4. Implementing a Maintenance Order
Should no appeal be lodged, then in effect, both parties are bound to perform and make payments in accordance to the order granted.
If a parent does not pay, the other parent can make a formal grievance at the Maintenance Office with proof of payment and non-payment as well as reflecting how much maintenance is owed.
Thereafter, notice will be sent to the non-paying defaulting parent to attend court to provide reasoning for the non-payment. If the non-paying parent is refuses to make payment, civil and criminal remedies as discussed in this article are provided to the primary care giver who lodged the application of non-payment.
7.5. REDUCING MAINTENANCE:
If the parent can no longer manage to pay the amount in terms of the Court Order, the parent that is unable to pay the ordered amount, can make an application to the Court for a decrease in maintenance, subject to financial enquiry. Such financial enquiry will establish whether if the parent indeed can no longer pay for to pay the sum provided in terms of the order.
7.6. Maintenance order by Consent:
Should the parents reach an agreement of an amount during the proceedings or prior to the application enquiry, they can enter into a written agreement between themselves with the help of maintenance officer.
Such an agreement will then become an order by consent, thereby an order of court. It is not necessary for both parents to be present when the Magistrate makes this an order, but a copy of the agreement has to be served by the sheriff of the court on the other parent who has to confirm receipt thereof . The sheriff will submit a sheriff return stating that service of the agreement was provided to the other parent and that the other parent is aware of the terms of the agreement.
The parent whom made the application is only required to be present.
7.7. URGENT FINANCIAL RELIEF REQUIRED::
Although above on the outset seems simple and quick relief, the application procedure is timeous, whether in divorce proceedings or maintenance proceedings, but while this application procedure is proceeding, the primary care giver is financially stricken and may need payment of maintenance in order to sustain the child in the interim.
There is provision made available in which, should you require urgent emergency monetary assistance, you could approach the Clerk of the Domestic Violence Court for an interdict. The Magistrate will consider your application for an interdict and if satisfied, a temporary interdict with a return court date will be allocated in which both you and the other party will state your case. After hearing of the evidence, The Magistrate will then conclude whether a final interdict should be granted. In all prospect the urgent financial reprieve will not be in the ultimate interdict as you will have to go to either the divorce court or the Maintenance Court for an applicable order in due course.
7.7.1. DURING DIVORCE PROCEEDINGS
South African legal system makes provision for this situation in which one can apply to Court, in which your divorce proceedings is taking place, to have the Court order for maintenance for yourself; your child as well as contribution to the payment of legal fees (where legal representation is used). A temporary order for payment until the divorce is concluded could be awarded if your present enough evidence before the Magistrate or Judge to support your request for maintenance during divorce proceedings.
When proceedings or applications are instituted, the relationship between the parents becomes bitter and in some cases hostile resulting in either threats or actions of non-payment of expenses to “punish” or “control” the other parent. It should be noted that children tend to mimic the vibrations of their parents and in that they are exposed to an unhealthy environment filled with anger and frustration. This hampers their development and places burden indirectly on them. Although they might not understand the financial situation, the behaviour of parents should be amicable and they should have mutual respect for each other.
Children did not choose to be born, parents made that decision mutually and thereby the parents mutually became responsible for the children born. Therefore children should not be prejudiced or punished for the actions of the parents, but rather shown that the parent’s decision for bringing them into this world was that not of regret but only that of being rewarded with the blessing of new life of children.
“Children who receive the child support they’re due have many better outcomes in life. They tend to do better in school, don’t get involved in juvenile crime and have higher educational achievements” (quote by Pam Compton)
(NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney OR clerk of the court)