The duty to maintain children is legally recognised under section 28 (1)(c) of the Constitution of the Republic of South Africa Act 108 of 1996, the Maintenance Act 99 of 1998, Children’s Act 38 of 2005 and the Maintenance Amendment Act 9 of 2015.
The broad application of the duty to maintain clearly shows the welfare of children is not taken lightly in South Africa.
The prevalence of single parent headed families is rampant in South Africa and in most cases the absent parent contributes little or nothing towards the upkeep of the child. A need for a stringent maintenance regime to curb this scourge subsequently arose, which will be the subject of this brief analysis.
The following categories of parties have the duty to support children;
With regards to the child’s biological parents, the duty to support automatically vests at birth and it does not matter whether the parents are married or unmarried, separated or together. Both parents have the duty to support the child taking due regard of their respective means, as provided by Section 15 (3) (a) of the Maintenance Act 99 of 1998.
There cannot be an exhaustive bracket of what supporting the child translates to, as it depends on the circumstances, reasonable needs of each child and the environment in which they are in. However, it is widely accepted that the following necessities ensure the proper and dignified welfare of children as per Section 15 (2) of the Maintenance Act:
In Fish Hoek Primary School vs GW 2010 (2) ALL SA 124 (SCA) the Court held that a parent who is not the custodian of the child is still liable for the education expenses of the child. The Respondent had argued that the word parent in Section 40(1) of the South Africa Schools Act 84 of 1996 does not apply to him as he was not the custodian parent.
The decision of the SCA in this case clearly puts paid to the emphasis the South African legal system places on the duty of care towards children by those with such duty.
As indicated above the extent to which the nature of support goes is largely premised on the respective means of the party who the duty to support rests on. The basic approach that the Courts use however is as follows;
(Parent’s gross income) (Child’s needs)
(total gross income of both parents) X 1
= R00.00 (parent’s contribution)
One needs to approach the Maintenance Office at the local Magistrate’s Court. The Clerk will request the following standard documents to review and register the claim. However, other added documents may be required depending on the circumstances.
Upon a claim being registered, summons will be issued to the party to whom the claim is lodged against inviting them to Court at an appointed date, place and time to have the matter resolved. On the day, the Maintenance Officer (Prosecutor) will initially attempt to resolve the matter by mediating between the Applicant and the Respondent.
Should a settlement not be reached, the matter will be referred for adjudication before the Court. The Court will conduct an inquiry into the financial affairs of the parties before handing down an Order after taking due regard to each parties’ means and the reasonable needs of the child.
Either the Applicant or the Respondent may approach the Court to request an increase, decrease, amendment or setting aside of the Order depending on any changed circumstances. Sufficient evidence is required which may be challenged before the Court makes an order for such variation.
Regarding default in payment, the party in whose care the child is in may approach the Maintenance Office at the Magistrate’s Court which issued the Order to lay a formal complaint, together with proof of such payment default. The Court will then take appropriate measures to recover the arrears and may issue an Emolument Attachments Order.
Section 305 (4) of the Children’s Act 38 of 2005 provides that a party who is legally liable to provide adequate support in terms of food, shelter, clothing, and medical assistance will be guilty of an offence if they unreasonably fail to do so. In terms of the Maintenance Amendment Act 9 of 2015 defaulting in maintenance may result in adverse listings at Credit Bureaus, imprisonment, emolument attachment orders as well as interest and arrears accruing.
Child maintenance must be paid until the child turns 18 years old, thereafter the child may bring an application in their own name for support until they are self supporting. The existing order must be honoured until an order for discharge has been issued.
Even if one is unemployed, the legal duty to support still vests and it is an offence to just neglect that duty. The primary care giver may still apply for a maintenance order so that the Court may make an inquiry if the Respondent receives any other income e.g unemployment benefits, supplementary income, so that they can contribute towards child support.
Remember the grandparents of the child may still be called upon to support the child financially. If it is the finding of the Court that the Respondent has no means, it will encourage the Respondent to find means of income so that the duty to support is honoured which then commences soon after an income is secured.
The child maintenance legal system in South Africa is fraught with several technical issues and due to its broad application, it is advisable to seek legal assistance for the benefit of children.
Contact us for more information.
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