By Candice Eve-Friis, Partner in the Child & Family Law department at Shepstone & Wylie Attorneys
What constitutes maintenance?
According to legislation, a child is entitled to reasonable maintenance to provide for clothing, housing, dental and medical care, education and training, and recreation (where applicable). Both parents have a duty to maintain the child according to their respective means. The duty exists irrespective of whether the child’s parent’s are unmarried, the child is adopted or the child is from a first marriage or later marriage.
What are the recent changes to maintenance legislation and what are the implications thereof?
On 9 September 2015, the Maintenance Amendment Act No. 9 of 2015 was passed. This Act is seen as the next step in what has been over a decade of initiatives by the Department of Justice to strengthen the South African maintenance system and to put into place remedies to deal with those who fail to comply with their duty of maintenance. The Bill seeks to inter alia ensure for speedy enquiries by the enforcement of interim orders, further regulate the making of maintenance orders and empower the Maintenance Court to, on the basis of a complaint being made that a person has defaulted on their maintenance obligations, submit his or her personal details to the Credit Bureau. Unfortunately, whilst the objectives of the Act are commendable, there is still cause for concern when it comes to the magistrate courts being understaffed and undertrained.
Changes include inter alia:
- Should a person default on their maintenance order, it is now lawful to hand over their personal information to the credit bureau, thus preventing any further credit being granted to this person whilst they owe maintenance. Essentially the maintenance defaulter will become blacklisted;
- Should a maintenance officer fail to track down the person against which the complaint is lodged, the court may order cell phone service providers to hand over any information pertaining to that person. This order will only be granted if the court is satisfied that all efforts were raised to track down the person in question;
- Interim maintenance orders may be issued in the event that an enquiry is postponed. The courts will aim to conclude maintenance enquiries as quickly as possible and with as few postponements as possible. However the court may grant, as they see fit, interim maintenance orders to supplement the complainant financially during the duration of the enquiry if postponements occur;
- The Courts will aim to secure witnesses through the means of subpoenas so as to present factual evidence of the financial position of the person in which the complaint has been made against;
- Criminal charges may be brought against a person who fails to pay the maintenance as stipulated by their maintenance order and they may face jail time not exceeding three years and/or a fine;
- Any person who fails to notify the court of residential and/or employment changes shall be found guilty and may face jail time not exceeding a year, and/or a fine;
- Complaints filed with a maintenance officer will be investigated by the maintenance officer in the prescribed manner and upon completion of the investigation. The officer may begin a line enquiry in the magistrate court in the area where the complainant is employed as opposed to only where he/she resides; and
- Maintenance applications can now be served via electronic email as opposed to only in person by the sheriff of the court, the maintenance investigator or the police. This will assist in securing, at court, the presence of the person against which the maintenance complaint has been made.
How can you reduce the maintenance amount?
If you can no longer afford to pay the ordered amount, you can apply to the courts for a reduction subject to financial investigation.
Can a maintenance order be obtained by consent?
Yes, this can happen during the informal enquiry when parties come to a written agreement between themselves (sometimes with the help of maintenance officer).
Can you appeal against a maintenance order?
You cannot appeal an order by default or if the existing order was made by consent. You also cannot appeal a provisional order relating to the costs of paternity testing. In all other cases, you can appeal, and a notice of intention to appeal must be given to the clerk of the maintenance court in the province where the order was issued. The notice must also be delivered to the other party within 20 days of the original order being made. An appeal does not suspend payment of maintenance in line with the existing maintenance order.
What happens if the party ordered to pay maintenance fails to pay you?
If he / she fails to comply with the terms of the maintenance order, and the order remains unsatisfied for a period of 10 days, you can apply to the maintenance court in the area you live in for authorisation 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 wage in settlement of a debt owed by the employee to a third party creditor. The defaulter’s personal information can also be handed over to the credit bureau, preventing any further credit being granted to the defaulter whilst they owe maintenance. Essentially the maintenance defaulter will become blacklisted. Failure to pay maintenance is a criminal offence with either a fine or imprisonment attached to it. The only out for the defaulting party is to prove respondent must that he/she could not pay due to a lack of money / income.
Can you apply for maintenance in the middle of a divorce?
During a divorce, you may find that your spouse has stopped paying certain expenses. South African law allows you to apply to the divorce court for a court order for maintenance for your children, maintenance for yourself, and a contribution towards your legal costs (if need be). You will file an affidavit stating your financial circumstances and why you require financial assistance, and your spouse will reply to your affidavit with his/her own affidavit. Thereafter, the case will be argued in front of a judge who will make an interim order that will in place until the divorce is finalised.
Can you apply for maintenance if you are not married?
If you are unmarried, you can apply to a clerk at the Maintenance Court, in the area you live and work, for an order for maintenance for your children and/or for yourself. The clerk will then subpoena the other parent to appear for a maintenance enquiry where the clerk will attempt to resolve your / the other parent’s maintenance issues. If no resolution can be reached, the clerk will refer the matter to a Magistrate who will then chair a formal hearing where both you and the other parent will give evidence regarding your financial situations. The Magistrate will then make a ruling, which amounts to a court order.
What if the other party to your maintenance enquiry is unemployed?
If this is the case, then the magistrate will postpone the enquiry and allow him/ her to look for work. If he / she is unemployed but has hire-purchase agreements that you know about, you can inform the magistrate who might then order that the furniture be attached and sold to pay maintenance. Whilst unemployed, a child-support grant can be sought from the Department of Social Development.
Does a child have a maintenance claim if a parent passes away?
Yes, against the deceased parent’s estate. This claim has preference over heirs, but does not have preference over creditors. The claim exists in so far as the child is unable to maintain him/herself e.g.: if the child receives a large enough inheritance to meet his/her needs, then he/she cannot claim maintenance from the estate.
Is there an obligation on grandparents to support a child?
If neither parent can support or maintain the child, the duty passes on to the grandparents (maternal and paternal). If a father / mother fails to pay maintenance, the primary care-giving parent can lodge a maintenance application against either grandparents (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 line 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.
For more information on the above contact:
Partner in the Child & Family Law department
+27 31 575 7506