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The Duty to Maintain
Every child has the right to reasonable maintenance. It is a legal obligation of both the biological parents, legal guardian, or if they cannot pay child maintenance, the duty of the grandparents to pay child maintenance.
The duty of child maintenance, such as providing the child, with housing, clothing, food, medical care and education, or other necessary fundamentals of life is an obligation which is a legal duty – also known as 'the duty to maintain’.
Child Maintenance is a responsibility that falls on the shoulder of a relative, either through blood or adoption, or marriage.
There are three conditions involved in the claiming of support:
How much Child Maintenance is payable?
What constitutes reasonable support when assessing the upbringing of Minor Children?
It should be taken into consideration when making this assessment that, the necessities include food, clothing, education, medical expenses and housing.
To determine the reasonableness will depend on the standard of living of the family.
Say, the child has always attended an expensive Private School, and the parents get divorced. The Maintenance Court will likely grant an order that the child can still attend the Private School if the school fees and other school-related costs are within the means of the Parent (s).
Child Maintenance Orders can take on different forms and usually include the following or a mix of them:
That the Non-Primary Parent will make a cash amount contribution to the Primary Parent. Payments can be made at the local Magistrate’s Court and other designated Government Offices.
Alternatively, that the money can be handed over directly (make sure that you have proof of payment) or via a payment into a designated bank account.
Otherwise, by means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from their employee's salary, in accordance with the Maintenance Act, 1998.
Education and School Payments
Child Maintenance Payments may include the cost of attendance or the cost relating to attendance and a variety of other aspects such as aftercare, lunch, outings, books, stationery, uniforms and sports activities.
Medical Care is a vital Child Maintenance Expense, and the duty to pay Child Maintenance may include the cost of a Medical Aid.
Orders made by the Court could include an Order for:
General Information regarding Child Maintenance
It is essential to be aware that a parent cannot withhold child maintenance because the other Parent denies them contact with the child, becomes remarried or have other children.
Child Maintenance and contact with a child are two entirely separate matters.
If there is a change in the personal circumstances, either Parent may approach the Maintenance Court to ask for an amendment of the Child Maintenance, i.e. an increase or a decrease.
Further, Parents cannot by agreement between them change an existing Maintenance Order without the Court's specific consent and a change in the original Maintenance Order.
If the Parents of Legal Guardians agree to what Child Maintenance is payable, their agreement can be made an Order of Court.
The duty to maintain remains until the child becomes self-supporting is adopted or die.
If the Parent passes away, the child will have a claim against that Parents estate for Child Maintenance.
Both parties must provide proof of appropriate expenditure so that the Court will be able to grant a fair Maintenance Order.
If you are not happy with a Maintenance Order, you have the right to appeal the Court order to the High Court that has jurisdiction.
Appeals are time-sensitive, and if you want to proceed with an Appeal, you need to file your Notice of Intention to Appeal within 20 days of the order being made.
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 about 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 if an enquiry is postponed. The courts will aim to conclude maintenance enquiries as quickly as possible and with as few postponements as possible.
The Courts will aim to secure witnesses through the means of subpoenas to present factual evidence of the financial position of the person in which the complaint has been made against;
Any person who fails to notify the Court of residential and employment changes shall be found guilty and may face jail time not exceeding a year, and/or a fine;
Maintenance applications can be served via electronic email as opposed to only in person by the Sheriff of the Court, the Maintenance Investigator or the Police.
How to Apply for Child Maintenance
You can directly apply for Child Maintenance or you can get assistance from a Family Law Attorney. The process can be very confusing for people that are not use to the legal system.
Visit the Magistrate’s Court that has jurisdiction.
Obtain, complete and submit Form A: The Application for a Maintenance Order
In addition to Form A, you will also need to provide proof of your monthly income and expenditure, for example, receipts for food purchases, school uniforms, schoolbooks, pharmaceutical items, electricity and/or rent bill payments.
The following events should then take place:
Whenever a complaint to the effect that any person legally liable to maintain any other person fails to maintain the latter person; or that good cause exists for the substitution or discharge of a maintenance order, has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner.
The Section 6 proceedings are where the Maintenance Officer will meet with the Parties (the Applicant and the Respondent). They will then see that the ApplicationApplication is in order and see if a settlement can be reached. If a settlement is not possible, they will refer the matter for a Section 10 enquiry.
The Court can order how the maintenance be paid.
What to do if a Parent or Legal Guardian fails to pay Child Maintenance?
If a person fails to pay maintenance according to a Court Order, you can, as the Applicant apply to the Maintenance Court that has jurisdiction to hear the matter for:
How to Calculate Child Maintenance
If you decide to proceed with a claim for Child Maintenance, you need to do your homework. Similarly, if you are opposing an application for an increase of Child Maintenance, you need to prepare appropriately.
Prepare a spreadsheet detailing all your income and expenses. This sheet must include all income such as your salary, bonuses and income from investments.
When you investigate your expenses, take into consideration all your expenses and not only the higher amounts as expenses add up fast.
Make sure that you also know the details of the other Party – the Respondent. The Maintenance Investigator can assist you with this process, and you can also arrange for subpoenas to be issued on people that can shed light on the Respondents income and expenses.
Once you have all this information, you will be able to determine the reasonable needs of the child, taking into consideration the standard of living. Also, be aware that if your standard of living is not as high as that of the Respondent, that you cannot insist on having an income to match their lifestyle.
Generally, the Courts will allocate one-third of the household expenses per child and two thirds per adult.
After the determination of the needs of the child, the income of the Parents is used to determine the amount of Child Maintenance that needs to be paid.
Parent’s Gross Income The Child’s Needs
_____________________________________ x __________________
The Combined Income of Both Parents 1
Child Maintenance can, as such, easily be determined if all the information is available.
We have extensive experience dealing with Child Maintenance Matters and if you need assistance with your Child Maintenance Matter, contact us!