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Child Maintenance Court – What do you have to know to win. Tips and Tricks

ByOur Lawyer

Child Maintenance Court – What do you have to know to win. Tips and Tricks

Child Maintenance Court – What do you have to know to win. Tips and Tricks

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Best interests of a child: When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, in relation to child maintenance matters, and specifically to the child maintenance court, the moment a parent files an application for child maintenance, the principal should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. A spouse may take the other to the maintenance court for personal maintenance.

Parental Maintenance Obligations

Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents.

According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.”

Furthermore, the duty is not discharged where one parent earns substantially more than the other.

According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following:

“(i) that the duty of supporting a child is an obligation which the parents have incurred jointly;

(ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and

(iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.

(b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.”

Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.

Processing the Maintenance Application

When a parent approaches the maintenance court for child maintenance, it is the duty of the maintenance clerk to expeditiously process the application. In doing so, the clerk through the other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer.

Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.

 

Getting the non-paying parent to the maintenance court

After the maintenance application has been processed, it is the duty of the maintenance court to ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court.

Therefore, if the next available date for a maintenance enquiry is in three (3) months time, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school traveling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry.

Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advices as well as proof of expenses.

Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago.

 

The maintenance enquiry before a maintenance officer

The maintenance enquiry is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain.

Denial of paternity

What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity.

Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.

Role of the maintenance officer

Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance.

The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests.

Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.

 

The maintenance investigator

Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.”

Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to:

“gather information concerning-

(i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable;

(ii) the financial position of any person affected by such liability; or

(iii) any other matter which may be relevant concerning the subject of such complaint; or

(f) gather such information as may be relevant concerning a request referred to in subsection (1) (c).

Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.

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The formal enquiry before a Magistrate

Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry.

Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award.

There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire.

Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.

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16 comments so far

KalthumPosted on1:11 pm - Sep 18, 2018

Dear Sir
I applied for maintenance in 2011 for my 2 children (age at the time 17 & 10 respectively) and the court approved the payment of R1000/mnth. My ex subsequently only paid 3 months and I never received anything again as he told the court that we had come to an agreement outside of the courts. I never bothered going back as i had to make my way to Lavistown Courts as he resided in Cravenby at the time. These past years has been a real struggle for me and my children. He works a permanent job and refuses to contribute. Please advise. Jazakallag.

KellyPosted on8:03 am - Sep 25, 2018

Good day my husband is in a situation a lady claiming that he is the father of her 1year old daughter how do we go about finding out if it is so or not I need advice.

    Our LawyerPosted on9:39 am - Sep 25, 2018

    Good day
    We presume your husband is denying it fully. In that case, he can obtain an interdict against her. We strongly advise you obtain the advice of a lawyer for this. If she takes him to the maintenance court, he can ask for a paternity test.

ZakhePosted on10:34 am - Sep 28, 2018

Good day

My ex-husband -to -be applied for the decrease of child maintenance which he managed to pay for the last 2 years, This happened after I applied for an increase.

Is it legal to let his mother (who is working) to pay the difference of the amount of money that he claims he cannot afford should the court rule on his favor? He can afford to pay an Attorney to reduce his contribution but i do not have one.

Thank you

JanePosted on4:24 pm - Nov 6, 2018

The father of my son is not working but he has the rooms that he rented,and he is not support his child can i apply for maintenance

RefilwePosted on1:22 pm - Nov 9, 2018

My estranged husband has received collectively R2 million in the last 8 months including his pension, because of the divorce process we were negotiating meanwhile he dissipated funds or moved the funds.

From August he moved out and started providing R500 a week, while secretly supporting his adult 20 yr and 15 yr sons that are still living with me in the house. In court he argues that he does everything but it is not true because he buys food that do not even cater for the 5 year old, and from the R500 I buy lunch, medicine where i can and have to take her to school. The school fees are owing R33 000.

The maintenance officer asked that he bring 3 months bank statement and he did which shows only R200k in his accounts, the magistrate refused to hold session and said i must do civil claim, which is fine but the interest of the child are not taken care of here.

The money he used…can it not be traced? What if he has other accounts and did not submit the statements? What happens to the money he sent his friends and girlfriend?

So the court did not even give me an order on the R2000 he gives monthly…meaning he can at any time decide to stop saying the R200k is depleted because my request was dismissed? I would not know and he would go on supporting his other favourite kids who one is in tertiary and the other high school . In fact he has other two totalling five. And he can get away with dissipating R1million in under a year…this is after the homeloan was paid for till end of 2018 and that was under R170 and the car paid off and that was exactly R168 000.

I am not working, this is year 5. after I RELOCATED with him whenever he changed towns since 2013, 2015, 2016.

    Our LawyerPosted on2:18 pm - Nov 9, 2018

    Good day
    Your matter becomes very complicated to answer via the blog. Usually, the maintenance court would make a decision which a party would be happy with. Considering the facts, it may be a good idea to get an attorney who can look at civil routes seeing that the court is of little use.

zennyPosted on7:36 pm - Nov 26, 2018

Good afternoon
I’m a single mom of 11yrs old boy who works as a retail associate not earning much the father doesn’t maintain the child , what advise can I get in order for him to maintain pls assist

    Our LawyerPosted on8:47 am - Nov 27, 2018

    Good day

    We strongly advise that you approach the Maintenance Court in your area for a Maintenance Order against the Father. He has a legal obligation to support his child. The Court would look into the needs of the child, and the income and expenses of the parents and decide what is a fair amount. If the father does not pay in terms of the order, it is a criminal offense.

MerchePosted on9:53 am - Dec 5, 2018

Dear Sir, is there any legislation regarding maintenance for a child to be paid from a trust fund? My ex husband has a trust fund and is putting all his income/monies into the trust fund hence to avoid paying his maintenance. Thank you

MerchePosted on9:56 am - Dec 5, 2018

Is there any legislation regarding maintenance for a child to be paid from a trust fund? My ex husband has a trust fund and is putting all his income/monies into the trust fund hence to avoid paying his maintenance. Thank you

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