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Maintenance

What is maintenance?

  • Maintenance is an amount of money that a person has to pay towards another person based on a legal duty to support that person.
  • A legal duty to support a person is based on the relationship between the persons, the need to be supported and the ability to support.
  • For example, a father of a child has a legal duty to support his child, if the child needs to be supported and he is able to support the child.

Who is entitled to receive maintenance?

  • All children are entitled to receive maintenance from their parents, irrespective of whether the child is born during a marriage or out of wedlock.
  • Adopted children are entitled to receive maintenance from their adoptive parents, however, they are not allowed to receive maintenance from their biological parents.
  • Parents are allowed to receive maintenance from their children if the parents have little or no income, and only if the children have the financial means to do so.
  • Children may only receive maintenance from their grandparents if the children’s parents are unable to support them.
  • Spouses are allowed to receive maintenance from each other during the marriage or after marriage in terms of a divorce order.

Where can an application for maintenance be made?
An application for maintenance can be made against a defendant (person who must pay maintenance) at any Maintenance Court (“court”) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

Who can apply for maintenance on behalf of a child?
The parents, guardians and/or caregivers of a child can apply for maintenance on behalf of such a child.

What expenses can be claimed for in respect of a child?

  • When considering the amount of maintenance to be claimed, the following should be taken into account:
    • expenses for food, clothing, accommodation, medical care and education; and
    • provision for electricity, water, linen, cutlery and the washing of clothes.
  • The standard of living and financial means of the parents should also be considered when calculating the amount of maintenance.

What should a person take to court when applying for maintenance?

  • Identity document of the complainant.
  • Complainant’s contact details, such as telephone numbers and home and work addresses.
  • If maintenance for a child is claimed, the birth certificate of that child.
  • If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
  • A full list of expenses and any proof of same, such as receipts.
  • The complainant’s payslip and proof of any other income.
  • As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

  • The maintenance officer will inform the defendant of the application and will hold an informal enquiry with the complainant and defendant being present.
  • The defendant must take any proof of his/her income and expenses to the informal enquiry.
  • The purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement.
  • If a settlement is reached, an agreement will be entered into between the complainant and the defendant, which will be made an order of court.
  • If a settlement cannot be reached, the maintenance officer will place the matter before court for a formal enquiry to be held.
  • The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
  • The complainant and the defendant must both be present at the informal and formal enquiry, and will be allowed to have legal representation.
  • If the defendant fails to appear at the formal enquiry in court, an order may be given in his/her absence.
  • It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being granted.

How can a maintenance order be enforced?

  • If the defendant fails to make a payment of maintenance in accordance to a maintenance order, the following remedies will be available to the complainant:
    • Warrant of execution – the attachment and selling of the defendant’s property, such as his/her furniture, car and so on.
    • Emolument attachment order – the attachment of the defendant’s salary for payment of the monthly maintenance.
    • Attachment of debt – 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.
    • Criminal prosecution – 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 complainant must have a copy of the maintenance order available and proof that the defendant failed to pay maintenance.

Until when must a child be maintained?
A parent’s duty of support does not end when the child reaches a particular age, but when the child becomes self-supporting. A child will generally be considered to be self-supporting when s/he starts to work, but there are instances where continued support is necessary in accordance with the child’s and the parent’s standard of living.

Is any maintenance payable before a child is born?
Yes, this is called lying-in expenses and may include maintenance for the mother regarding expenses before or during the birth of the child. These expenses must be for the benefit of the child.

GLOSSARY OF TERMS:

CAREGIVER: a person other than a parent or guardian who has the right to care for a child. Care is the right of that person to have a child reside primarily with him/her and to control or supervise the daily life of that child.

CHILD BORN OUT OF WEDLOCK: a child whose parents were not married to each other at the time of the child's conception or at any time after the birth of the child.

GUARDIAN: both husband and wife are guardians of a child born from the marriage; the mother of a child born out of wedlock is the guardian, unless the father acquires guardianship, for example, by living in a permanent life-partnership with the mother; or the court may appoint a guardian. Guardianship includes safeguarding the child’s property or property interests; representing the child in legal matters; and consenting to marriage, adoption, removal from South Africa, or an application for a passport.

MAINTENANCE COURT: a special court dealing with matters relating to maintenance. Every Magistrate’s Court shall be a Maintenance Court.

MAINTENANCE OFFICER: a person appointed to assist with maintenance matters at court.

PARENT: the biological or adoptive father or mother of a child who has full or limited parental rights and responsibilities over his/her child.

SPOUSES: persons married in terms of a civil marriage, customary marriage, religious marriage or civil union, which includes same-sex marriages.

How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.


How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.

DISCLAIMER:

The information contained on this website is aimed at providing members of the public with self-help guidance on the law. The information applies to South Africa, unless it is specifically stated that the information applies to another country. Although LegalWise has tried to ensure that the information is accurate and current, it is important to remember that the law constantly changes. And, although LegalWise has tried to provide information of a high quality, we cannot guarantee that the information will be updated and/or be without errors or omissions. As a result, LegalWise, its employees, agents or representatives will under no circumstances accept liability or be held liable for the consequences resulting from, the use of or the inability to use the information, or, any negligence by us relating to the information so used. The information contained on this website has not been provided to meet the individual requirements of a specific person and we insist that legal advice be obtained relating to a person’s unique circumstances.