Changing a Maintenance Court Order: Do you need more, or need to pay less?
Written by Advocate Muhammad Abduroaf LL.B LL.M (Master of Laws)
Advocate of the High Court of South Africa
What often happens is that circumstances has changed since a maintenance order was initially made and there arises a need to have the order substituted with another order in line with current circumstance or for it to be discharged or set aside.
An application for the substitution or discharge of a child maintenance or child support order, whether the order was made at the maintenance court, divorce court or high court may be made at the local maintenance court. As soon as there is a change in circumstances, the application needs to be made and a delay could cause prejudicial. If the child has become self-supporting, then an application for the discharge of the child support or child maintenance order would be appropriate.
To give a practical example, should there be a child support or child maintenance order in place which only has in it an amount for food, clothing, accommodation and medical expenses but no provision is made for educational expenses and the child just stated attending primary school; there would obviously be a need for an increase in the amount of child support or child maintenance amount to be paid to include educational expenses. However on the flip side, should the person who is supposed to pay child support or child maintenance lose his or her job or be unable to pay the support or maintenance which he or she was previously ordered to pay; then he or she may apply to the maintenance court to have the current support or maintenance order substituted or discharged as the case may be. Having said this, should you wish for the support or maintenance order to “increase” or “decrease”, you need to make an application at the maintenance court, usually in the area where the carer and the child resides.
It is important to note that making an application for the substitution or discharge of a child support or child maintenance order is not a straight forward matter and your application may not be successful for a variety or reasons. Just as an application for a support or maintenance order in the maintenance court, the other party, usually the parent caring for the child or the party paying maintenance would be informed about the intended application and that court proceedings are pending. Both parties would have to appear before a maintenance officer outlining their income, expense and their case. If the matter cannot be resolved, the matter would be postponed for trial and oral evidence would have to be led and attorneys and advocates may get involved. Therefore it is best that the parties settle the matter out of court by being candid and reasonable having the child’s best interest at heart. Mediation by someone who knows the maintenance laws may be perfect to assist the parties in resolving their dispute.
It is strongly suggested that should there be a change in either parent’s financial situation, that they approach the maintenance court as soon as possible as the process may take some time before judgment is delivered or the matter resolved. Should the person ordered to pay child support or child maintenance delay in making the application and in the interim fail to pay support or maintenance as per the initial court order; then the party in whose favour the support or maintenance order was initially made may lay a criminal complaint. This would be best to be avoided. On the other hand, if the person applying for an increase in child support or child maintenance delays in making the application, the child would have to wait much longer to receive that much needed support or maintenance. So therefore, in acting in accordance with the best interest of the child, make the application as soon as possible.
Advocate Muhammad Abduroaf
Cape Town | South Africa
If you are looking for the contact details of Advocate Muhammad Abduroaf in Cape Town, they are as follows:
Chambers: 304 | 3rd Floor | 37 Stand Strand | Cape Town | Western Cape
Office: 021 811 7786 (Neotel) Fax: 086 606 7786 (Fax to email)
Mobile.: 083 731 9816