The payment of maintenance or child support is a legal commitment undertaken by estranged parents. Maintenance can either be paid by the mother or father of a child (or children) and each month, a specified amount is paid over to the parent who has legal custody over the minor children.
There is no need for the parents of a child to have been married to each other previously; children of unmarried parents are entitled to the same rights as children whose parents are divorced.
Why is maintenance paid?
Maintenance is paid to help the legal custodian to provide proper care for minor children. Payments need to be made regularly and usually payments will stop when the child turns 18, however if the child is still in school, the maintenance order can be extended. The monies which are paid over to the legal caregiver of the child should be used for clothing, food, shelter, education and medical care.
Once a child turns 18, and they are not yet self-sufficient, the child is able to claim maintenance from both parents but this will be done in their own capacity.
How is the maintenance calculated?
The Family Court will take into account several factors when calculating maintenance. The first factor is the amount of money earned by the parent. The court will consider that the parent will need to care for themselves and these costs will be worked in. For instance, a parent who is earning R6000 per month cannot be expected to pay R5000 in maintenance. Obviously the number of minor children will also be considered. Each case is different and the court will look into all the circumstances including the value of the assets held by each of the parents before making a decision on the amount of maintenance that should be paid over.
The intention of maintenance is to ensure that children are able to live at the same standard before the divorce occurred. The claiming of maintenance should not be seen as a -get rich quick scheme’ and courts will certainly not force parents to pay over massive amounts in maintenance, if the amount is not warranted or justified.
What if the amount of maintenance is just not enough to cover living expenses?
If this is the case, the custodian parent will need to approach the maintenance court and make their case heard. They claimant will need to have enough proof that the amount paid is not enough to cover basic living expenses, such as shelter, food, education, medical costs, etc. It may be that the parent who is paying the maintenance is not in a financial position to pay extra. The court will look at both sides and try and find the best solution.
What happens if maintenance is not paid?
If a parents stops paying maintenance, a court can issue an order which instructs a parent’s employer to deduct the sum directly off their salary and this money can then be deposited into the custodial parent’s bank account. A lawyer or the courts will is able to offer advice on how to recover maintenance from a non-paying parent. The website www.lawyersouthafrica.co.za/child-maintenance-support-information-for-parents/ is able to provide information in regards to various maintenance issue.
A parent (be it a mother or father) who refuses point blank to pay maintenance, can be made to do so by the court. The court can instruct that their possessions be seized and sold, with the proceeds being paid to the aggrieved parent. A parent who is not willing to pay maintenance may face a prison sentence but the courts are not too keen on this route, as the parent will then not be able to earn an income and they will not have the means to pay support of their minor child or children.
Parents have a moral and legal obligation to make regular maintenance payments!
In the event that a parent is unable to pay maintenance because they have lost their jobs, they should approach the court and certainly inform the custodial parent. The court may make the decision to decrease or suspend payments until the parent is employed. In a lot of cases, parents are able to work out an agreement between them, as long as the parent has proven in the past to be reliable.
Is nonpayment of maintenance allowed to affect visitation rights?
No, parents are not permitted to prevent parents from seeing or interacting with their children. By law, a parent is entitled to regularly see their children and the aggrieved parent should not try to oppose these visits.
Can maintenance be claimed while pregnant?
Maintenance can only be claimed once the child is born.
Those who are uncertain about the maintenance laws in South Africa should visit the Family Court or obtain professional legal assistance. All parents are urged to step up to the plate and take responsibility of their children and this means ensuring that they make regular maintenance payments which will help towards providing care, shelter, education and food for their children.
– Kathy Baron