MAINTENANCE OF MINOR CHILDREN

The issue of child maintenance is regulated by the Maintenance Act 99 of 1998. Both parents of a child have the duty to support their child financially. This is provided for in Section18(2)(d) of the Children’s Act, 38 of 2005.

In dealing with the issue of maintenance the following aspects need to be discussed:

a) Child maintenance.

b) Who has the duty to pay maintenance?

c) What will the court consider when making a maintenance order?

CHILD MAINTENANCE:

To claim for child maintenance, one must first determine the reasonable needs of the child on a monthly basis. A child is entitled to reasonable maintenance to provide for clothing, housing, dental and medical care, education as well as provision for food. Monthly cash payments are usually paid to the parent who has the primary care of the minor child/children. The payments are made in advance on or before a certain day of every month into an account nominated by the parent with primary care.

The maintenance payable usually increases annually on the anniversary date of the first maintenance order. If the child is 18 years old and not self-supporting, the maintenance should be paid into the child’s bank account.

WHO HAS THE DUTY TO PAY MAINTENANCE?

All parents whether married or not, living together separated or divorced and parents of adopted children are required to support the financial needs of their children. If the child’s parents are unable or cannot pay the biological grandparents may need to pay maintenance, otherwise any person who is responsible to raise the child, a legal guardian, adoptive parents, and grandparents of the child.

The parents of a minor child are required to pay maintenance until a child is self-supporting. The duty to support vests on all parents as indicated above and they have the responsibility to ensure that their children have access to basic necessities.

WHAT WILL THE COURT TAKE INTO ACCOUNT WHEN MAKING A MAINTENANCE ORDER?

When a court makes an order in respect of the maintenance of a minor child, it will consider:

a) The reasonable maintenance needs of the child as indicated above.

b) That both parents jointly have a duty to support the child.

c) That the parents’ respective shares of their obligation are appointed between them according to their means or ability.

Only once the child’s reasonable monthly needs have been determined will one be able to establish the contribution that each parent is required to make to meet those needs.

Maintenance cannot be measured in monetary terms alone. Usually, the parent who cares for the child daily indirectly contributes towards maintenance because of the time they spend together. Notwithstanding this, both parents still have a financial obligation to pay maintenance in accordance with their means, income, and expenditure.

Maintenance may need to be adjusted depending on the changing needs of the minor child or the financial position of the parents. Once the need for a change in maintenance arises, whether filing a new application or seeking to vary an existing court order, the applicant can request the Maintenance Court to:

a) Set aside an existing maintenance order.

b) Make a new maintenance order.

c) Decrease the current order.

d) Amend the current order.

e) Change an existing order.

Either of the parents, through the help of a family law attorney, for instance Rudolf Buys & Associates Attorneys, can apply to the Magistrate’s Court where the minor child/children reside for a variation of the current maintenance order.

How can a maintenance order be enforced?

If the defendant fails to make a payment of maintenance in accordance with a maintenance order, the following remedies will be available to the applicant:

a) Warrant of execution which is the attachment and selling of the defendant’s property, such as his/her furniture, car, etc.

b) Emoluments attachment order which is the attachment of the defendant’s salary for payment of the monthly maintenance.

c) Attachment of debt and this is the attachment of money owed to the defendant by a third party, other than a salary, for example rent owed by a tenant of the defendant.

d) Criminal prosecution which is the laying of a criminal complaint against a defendant based on the failure to comply with the maintenance order.

When using one of the above remedies, the applicant must have a copy of the maintenance order available and proof of the defendant’s failure to pay maintenance. If an order was granted for any of the above remedies, the details of the respondent must be given to any business who is involved in credit ratings (such as credit bureaus) or whose object it is to grant credit.

Rudolf Buys & Associates Attorneys has expert attorneys who have years of experience regarding issues of child maintenance, and they can help you solve any maintenance cases.