How do you claim maintenance for a child?

The parents of a child, regardless of whether it is born during a recognised marriage or union are responsible to maintain that child.

If you are caring for a child and a parent is not contributing to the child’s living costs, you need to apply for maintenance for the child at your nearest magistrate’s court. Every magistrate’s court has a maintenance court that deals exclusively with child support and family law issues.

How can I obtain a maintenance order?

If your child was born out of wedlock, you will not have a divorce order that specifies maintenance; however, you can apply for a maintenance order at the magistrate’s court nearest to your home.

You will need to complete the relevant paperwork and provide details of your income and expenses. To strengthen your case, keep proof of actual living costs, such as food receipts and other expenses.

You will also need to provide information about the person you are claiming maintenance from, including their ID number, work and home addresses and contact numbers.

What process is followed?

A court date will be set. A maintenance officer will investigate your claim, and a summons will be served on the parent to appear in court so the case can be heard.

The parent has the option of accepting the claimed maintenance amount or contesting it in court.

If they agree with the maintenance claim, the magistrate will issue an order of court, and neither party needs to appear in court.

If they contest the maintenance claim, they must appear in court, where the magistrate will consider the evidence and witnesses. If a maintenance order is granted, it will specify the amount as well as when and how it must be paid.

What happens if a parent fails to pay maintenance?

Defaulting on maintenance payments is a criminal offence punishable by up to a year in prison. Approach the maintenance court to enforce the maintenance order. 

The court will decide whether to pursue criminal charges or handle it as a civil matter. In addition, the court may take one of these actions to ensure that maintenance is paid:

• Warrant of execution: the defendant’s goods are attached and removed to cover outstanding maintenance and sold at an auction. If the value of the immovable goods is insufficient, a warrant of execution will be issued for their immovable possessions, which may include property, policies, investments, pension funds, and bank accounts.
  
  
• Emolument attachment order: the defaulter’s employer must deduct the maintenance amount and pay it over directly to the complainant.
  
  
• Garnishee order: a third party pays the arrear maintenance this directly to the complainant.

In addition, the court may choose to prosecute the defaulter in a criminal case for failing to comply with a maintenance order.

Can you claim arrears from a pension fund?

Attaching pension fund benefits is a last resort, but the court may issue a warrant of execution for maintenance arrears if all other avenues have been exhausted. Section 37D of the Pension Funds Act provides for this.

Maintenance arrears may be deducted at any point, before retirement and upon resignation or retirement of the member.

Once the warrant of execution has been issued, the sheriff of the court will approach the pension fund administrator to pay the arrears from the member’s pension fund.

Can access be denied if the maintenance is not paid?

Maintenance and access are two distinct issues, so a parent may not be denied access to their child because they are not paying maintenance. Conversely, a parent may not refuse to pay maintenance because they are being denied access to their child.

If you are being denied access to your child, approach the clerk of the Children’s Court to apply for a parenting plan in terms of Section 33 of the Children’s Act.

What if the cost of raising the child increases?

Approach the maintenance court and request an increase. A financial inquiry will be conducted, following which a decision will be made and the maintenance order amended.

Must an unemployed parent pay maintenance?

A parent cannot be forced to pay maintenance if they do not have money. If they can pay a lower amount, the maintenance order can be amended to reflect this. This is not a permanent order, as their financial situation may change in the future.

If they have no income but can sell their assets to pay maintenance, they will be expected to do so.

If a parent is unable to pay or is a minor, the child’s grandparents may be required to pay maintenance. They must be able to afford it financially, and the decision will be made in the maintenance court.