CLAIMING CHILD MAINTENANCE: WHAT YOU NEED TO KNOW!

CHANEL PEREIRA

There are lots of questions that need answering when you are considering claiming child maintenance. You may be wondering: How do I claim child maintenance ? Why should the person pay maintenance? How much maintenance can I claim? How are the payments made? What can I expect to be the procedure when I institute a claim and what documents need to accompany the application? Can I refuse contact with the child if the person does not pay Maintenance? All these questions and more are answered here.

Who can claim child maintenance?

  • A biological parent can claim child maintenance from the other parent;

  • An adopted parent can claim child maintenance from the other parent who entered into the adoption with them; and

  • A person over the age of 18 can claim maintenance directly from his or her parent


Who has a duty to pay maintenance?

  • Biological Parents, whether married, living together, separated, or divorced and parents of adopted children, are required to support the financial needs of their children.

  • The grandparents may need to pay maintenance, if the child’s parents were married.

  • Identification of both parents and their whereabouts are thus vitally important in a claim for maintenance.

  • If you don’t know the whereabouts of the child's other parent, maintenance investigators can trace them and determine their financial capabilities.


Why should I pay maintenance?

  • It is the child that is entitled that his or her basic needs be met with the support of maintenance.

  • Known as the “duty to maintain” or the “duty to support”, all parents have the responsibility to ensure that their children have access to basic necessities such as: Shelter, Clothing, Medical care, Schooling and Food


How much maintenance should be paid?

  • This will be determined primarily on two factors; 1) The reasonable needs of the child and 2) The financial position of each parent.

  • The Reasonable needs of the child will be calculated by the parent who is requesting maintenance and should include food, clothing, medical costs, school fees and other items necessary to support the child.

  • The financial position of each parent is determined by each parent disclosing their income and expenses.

  • An order to pay less maintenance: Take note that a court will not order that a parent pay an amount of maintenance that he or she cannot physically afford . In cases like this the court is likely to order that the parent pay a lesser amount of maintenance.

  • An order not to pay maintenance: If the parent does not have an income and does not have any assets which can be used to make payment, he or she will not be required to pay maintenance.

  • The standard of living of the family may also be considered in order to determine if certain expenses will be awarded. For example, recreational expenses, extra mural activities and tertiary education, to name but a few.

How are payments made?

  • At the local magistrate's office and designated government offices; or

  • To the bank or building society account designated by the person concerned; or

  • Directly to the person entitled to the money; or

  • By means of deducting the money from the person’s salary, in accordance with the Maintenance Act, 1998.

  • In most cases the parent requesting the maintenance will include their banking details and indicate that the maintenance be paid to his or her bank account.


What are the steps that need to be taken in order to obtain an order for child maintenance?

  • An application must be brought against the other parent wherein it is requested that he or she pay child maintenance.

  • An application can be requested at your nearest Maintenance Court, located at the Magistrate Court.

  • The Clerk of the Maintenance Court will provide you with an application form which will be your application which you will then complete.

  • This application is then sent to the parent against whom the application is being made or he or she is notified of the application brought against him or her and both parties are informed of a date and time to appear before the maintenance Officer.

  • The Maintenance Officer will investigate the case and will try to mediate so that a settlement can be reached.

  • If the parties cannot agree on an amount to be paid, the case will be referred for a formal hearing before a Magistrate. This will take the form of a ‘trial’ where evidence will be heard.

  • Thereafter, the Magistrate will in his or her judicial discretion, determine the amount that is to be paid and make an order of court.


What documents needs to support the application?

  • The Birth certificate of your child/children;

  • A copy of your identity document;

  • Your Proof of residence;

  • The divorce settlement or order if applicable;

  • The personal details of the parent required to pay maintenance such as their name, surname physical and work address;

  • Copy of your bank statement and/or payslips as proof of income; and

  • Receipts of purchases, bank statements or any other evidence in support of your monthly expenses.


Failure to pay Maintenance and Refusal to allow contact with the child

  • I find it important to note that should the parent not pay maintenance; you do not have the right to refuse his or her reasonable contact with his or her child.

  • Maintenance and Contact are two entirely separate matters and does not have anything to do with each other legally.


When will the legal duty to pay maintenance stop?

  • Either when the child reaches the age of majority (when he or she reaches 18 years of age) or when he or she becomes self-supporting or is adopted, whichever comes first.

  • If the child reaches the age of majority he or she will then apply for maintenance against his parent, if he or she is able to prove how much he or she needs to be maintained.


Should you need any assistance with instituting or defending your matter, please contact our office as soon as possible to arrange an appointment