Children are entitled to reasonable maintenance to ensure they have clothing, housing, medical care, and education, and both parents have a duty to provide maintenance to their child. However, when the parents aren’t together, for whatever reason, it often happens that one of the parents fail to comply with their maintenance duty.
The Maintenance Amendment Act No. 9 of 2015 has made provision for steps that can be taken against any person that has defaulted on their maintenance obligations. These include but are not limited to:
- Making it lawful to hand over their defaulter’s information to the credit bureau, preventing any credit from being granted to them while they owe maintenance.
- Allowing the court to order cellphone providers to hand over any information relating to that individual.
- Enabling the courts to secure witnesses to present factual evidence of the individual’s financial position.
- Bringing criminal charges against any person who fails to pay the maintenance.
- Allowing maintenance applications to be served via email.
Questioning the affordability
If a person can no longer afford to pay the ordered amount, they can apply to the courts for a reduction. This request is subject to a financial investigation.
Maintenance during divorce
South African law enables a person to apply to the divorce court for a maintenance order. The individual will need to file an affidavit stating their financial circumstances and why they need financial assistance. Following a response by the spouse, a judge may make an interim order for the duration of the divorce.
If the individual under the maintenance order is unemployed, the magistrate will postpone the enquiry to allow the person to find work. Then, however, an application for a child-support grant can be submitted to the Department of Social Development.
Maintenance claims against a deceased estate
A child can make a maintenance claim against a deceased parent’s estate. The claim takes preference over heirs but not over creditors.
The obligation of extended family
Should neither parent be able to support the child, the duty passes to the grandparents. If neither the parents nor grandparents can provide support, then the burden passes to the child’s siblings but only if the child is truly in need. By law, stepparents aren’t obligated to maintain the child.
Getting an order of maintenance can be a complicated process. For advice on and assistance with maintenance applications, get in touch with Michael Krawitz Attorneys today.