Understanding the gist of child maintenance is important. Ilza le Minnie, director of Le Minnie Attorneys, spoke to journalist NOLUVU LUDIDI, giving more insight on the issue.
How does one apply for child maintenance? An application for maintenance is done at the Maintenance Court at the Magistrates’ Court in the district where the minor child resides. On your visit you will be provided with the necessary forms to complete for the application. The forms can also be downloaded from the Department of Justice’s website at https://www.justice.gov.za/forms/form_mnt.htm., completed and returned to the Maintenance Court.
What if the parent refuses to pay child maintenance, what does the other parent do in this case? If a parent refuses to pay maintenance where there is no court order in place, an application for maintenance would have to be completed as stated above.
How much do parents have to pay for child maintenance, how is this determined? There are three important aspects the court considers in deciding what amount is payable for maintenance. The first and most important would be the reasonable and necessary expenses of the minor child. Once this is calculated, the court looks at the affordability of the parents/people responsible for paying maintenance which is both the mother and the father of the child concerned. It may also be a caregiver and the parents of the child, depending on in whose care the child is. There is a misconception that parents are equally responsible for the minor child’s maintenance. However, this is not true. The court looks at levels of affordability of either parent to determine who is responsible for payment of which expenses.
What does the law say about child maintenance? The law states that the interest of the minor child is paramount and must be protected. The maintenance laws also state that payment of child maintenance is paramount to all other debt, therefore, a parent cannot claim they are too indebted for example funeral plans, credit cards, clothing accounts, care of parents or other family members to pay maintenance in respect of the minor child. The maintenance payment is to come first.
Which consequences do you face if they do not adhere to the court order? There is an affidavit to be completed available from the Maintenance Court setting out when the order was granted and what the arrears amount to. The bank statements of the applicant would be needed to prove no payments have been received. The Maintenance Officer will then have a discretion on how to proceed. They may apply for a garnishee order, which is sent to the respondent’s employer and instructs them to pay the required maintenance directly to the applicant and deduct it from the respondent’s salary. The Maintenance Officer may also institute criminal proceedings against the respondent for failure to pay maintenance. It could be a situation where the failure can be explained or the financial circumstances of either party have changed and the court can then refer the matter for a financial enquiry in terms of Section 10 of the Maintenance Act 99 of 1988. The penalties for failure to pay maintenance are quite severe and the respondent could in some instances face imprisonment.
Any other information you would like to share? It is the responsibility of both parties to remember that they are obligated to inform the court should their financial status change in any way. It was quite problematic during lockdown when the respondents lost their jobs or were retrenched as that is not an excuse to not pay maintenance. The respondent has to bring an application to substitute the existing maintenance order and cannot wait to be subpoenaed to bring the matter to court. In the aforementioned instances the applicants also have a right to attach a certain part of the respondent’s pension or provident fund payment for future maintenance for the minor child. This extends similarly to applicants where the minor child’s expenses decrease for whatever reason (ie no longer playing a sport or using a transport service which was included in the original application). They too need to bring an application to substitute the maintenance order. The form for application to substitute a maintenance order can also be found here: https://www.justice.gov.za/forms/maintenance/MNT_Form%20B.pdf. The respondent is to be wary of the maintenance payment escalation and the applicant is to request and order that the maintenance amount be escalated annually by a certain percentage or a percentage linked to the Consumer Price Index. The applicant or respondent being unemployed is not the end of the road for maintenance applications; the minor child’s grandparents can in certain instances also be held responsible for the maintenance of the minor child. It is important to note that maintenance need not be an emotional affair or a manner of fighting between parents of the minor child, no longer in a relationship or married. It is only about the best interest of the minor child and what the child requires in relation to what both parents can afford. There is a further misconception that maintenance payment stops when the child turns 18. There are different scenarios to consider and they all revert to which order was made by the court. In most instances the Divorce Court, which can also make an order of maintenance. The court will order that maintenance is payable until the child turns 18 or becomes self-supporting, whichever occurs last. It may also state that it is payable until the child completes their first degree. The applicants should ensure their order states what they require for the maintenance of the minor child. If it states it is payable until 18, the now major child will have to apply for maintenance themselves against both parents, should they still require it.
