Child Maintenance

How much maintenance is payable
The biological or adoptive parents, guardian or grandparents of a child are liable to maintain that child. However, grandparents are only liable to pay maintenance in circumstances where the parents are unable to do so. Maintenance for a child includes the provision of food, clothing, accommodation, medical care and education.

How much maintenance is payable
The amount of maintenance payable depends on the needs of the child and the financial means of the person or persons liable to pay such maintenance. Such persons will be liable to pay maintenance on a pro rata basis depending on their respective means. In terms of South African common-law, maintenance for a child is payable until such time as the child becomes self-supporting.

Maintenance disputes
Most maintenance disputes (apart from interim maintenance in divorce proceedings) are handled by the maintenance court, which can be found at most magistrate’s courts around the country. You can apply to the maintenance court for a maintenance order, where none is in place, or for a variation or discharge of an order, where an order already exists. The applicant is required to complete the necessary forms and provide certain documents to the maintenance officer, including a copy of any existing order, copy of the applicant’s identity documents, copies of birth certificates of the children and three months bank statements.

Once a maintenance investigator has investigated the claim and found same to be legitimate, a maintenance officer will issue a “directive” or a “subpoena”, which is then served on the respondent i.e. the person against whom the order is sought. Both parties are directed to appear at court on a future date and are be called upon to provide certain documents to the court.

The maintenance officers encourage the parties to settle the dispute without the need for a formal enquiry, but should this prove impossible, a date will be set for a formal hearing. This process can take several months.

It is vital that you, as either the applicant or the respondent, make a full and frank disclosure to the court of your income and expenditure, which must include pay slips, banks statements and where necessary, invoices, receipts and till slips. It can become difficult to prove the other party’s ability to pay maintenance, in circumstances where that person is self-employed. In such circumstances, it will be necessary to request the maintenance officer to issue subpoenas against the other party’s bank(s) in order to ascertain their income and expenditure. The formal enquiry
A formal enquiry in a maintenance matter is run like any other trial in which oral evidence is heard from both parties and any other witnesses who may be required to give evidence as to the parties’ means. Witnesses can be questioned by either party and the magistrate. An applicant applying for an order for maintenance, must prove that there is a need for maintenance, how much maintenance is required and what he or she earns. The Respondent can dispute these facts and is required to prove his or her means and ability to pay the amount claimed or any other amount which the court may order.

Do I need legal assistance
Maintenance matters can become extremely litigious where the parties are unable to reach agreement on the amount of maintenance required and/or their ability to pay. Where there is a possibility that the matter will be referred to a formal hearing it is best to seek legal advice from the outset to ensure your case is properly managed and that the correct documents are put before the court.

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