Financial maintenance of children and consequences of non-payment

The Constitution provides in Section 28 that every child has the right to parental care, basic nutrition, health care, etc. One of the ways in which this right is realised, is through the payment of maintenance. The Children’s Act 38 of 2005 provides for the obligation on parents to pay maintenance.

Maintenance is a monetary amount that a parent has to pay towards the care of their child. This is a legal duty to support and springs from the relationship between them, being that of parent and child. When a legal duty is determined, it will be considered whether the child is in need of support and whether the parent is able to support.

Both parents have an obligation to maintain and support their child, whether the parents are/were married to each other or not. The payment of maintenance usually only becomes an issue when the parents get divorced or were never married to each other.

All adoptive parents have the same responsibility to maintain an adoptive child. An adoptive child may not claim maintenance from a biological parent.

The duty of parents to maintain a child does not lapse when the child reaches the age of majority. A child will be entitled to maintenance as long as he/she is not able to support himself/herself. A child may become self-supporting when he/she becomes employed. Any mental- or physical challenges will also be taken into account when determining a major child’s ability to support himself/herself. Should a major child be in need of maintenance, he/she will bring an application himself/herself and not his/her parent.

The primary responsibility to maintain a child lies with its parents. A child may, however, claim maintenance from its grandparents if its parents are not able to maintain the child and the grandparents are able to provide this support.

In the event that one parent neglects his/her duty to maintain a child, the other parent may approach the Maintenance Court for a maintenance order. The application may also be made by a guardian or caregiver of the child.

Claims may be made in respect of expenses for food, clothing, accommodation medical care, education and related activities, utilities, etc.

When approaching the court, the applicant must furnish his/her identity document and birth certificate for the child, a list of expenses (and proof of same), proof of applicant’s income and details of the defendant, such as contact details, home and work addresses, income etc.

The court will then inform the defendant of the application and an informal inquiry will follow, with both parties being present. All parties must ensure that they provide proof of income and expenses at the inquiry. The purpose of the inquiry is to assist the parties in reaching a settlement. If a settlement can be reached, the agreement will be recorded and will be made an order of court.

If a settlement cannot be reached, the matter will be enrolled for a formal inquiry. The court will then consider all facts and evidence to determine whether maintenance is payable and the amount thereof.

Maintenance amounts are determined by considering the earning capacity of both parents (it is therefore possible that orders can be made that parents are obliged to maintain a child in different ratios such as 70/30 % and not equally), the standard of living of the parents and the child is accustomed to and actual costs incurred (or to be incurred).

Parties may have legal representation at both the informal- and formal inquiries. In the event of the defendant’s absence, and order may be given in his/her absence.

It may still be that even if a maintenance order is made, a party may still default in his/her obligations. A maintenance order may then be enforced in the following ways:

• A warrant of execution may be issued in terms of which the defendant’s property may be attached and sold.
• An emoluments attachment order may be issued, attaching a portion of the defendant’s salary.
• Attachment of amounts owed to the defendant.
• Criminal prosecution.

In order to enforce a maintenance order, the applicant must provide a copy of the said order and proof of the defendant’s failure to pay accordingly. If any of the above remedies are awarded, the defendant’s credit rating will also be affected negatively.

It has also been determined that a defendant’s pension fund may be used to satisfy any debt in respect of maintenance. Section 37D of the Pension Funds Act provides that a pension fund may be attached as further provided for in Section 26(4) of the Maintenance Act. An outstanding amount may therefore be deducted from the defendant’s pension fund at any time – before-, on- or after retirement or resignation of the defendant.

In order to affect this deduction, a maintenance order must have been made by the Maintenance Court, the defendant must have defaulted in payments in accordance with the order and an enforcement order must have been obtained.

A deduction against a pension fund is not limited to arrear amounts only. Where a defendant is withdrawing his/her pension fund, and reasonable grounds are shown that a defendant may keep on defaulting on payments in the future, an order may be made that an amount may be deducted in respect of future payments.

All other remedies for enforcement must be exhausted and a claim against the defendant’s pension fund will only be authorised by the court as a last resort.

The best interests of the child will always be paramount in determining maintenance amount payable as well as determining what remedy is to be used in order to enforce a maintenance order.

For assistance, contact AJ Cronje, aj@ottokrause.co.za, 011 675 2881.

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