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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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38 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

Beatrice KamalambaPosted on9:47 pm - Dec 20, 2018

a husband who agrees to maintain his four year old son defaults to pay his 3rd term school fees. this is due to the relocation of the boy from an affordable government, to a private school. husband alone is expected to make payments when the single mother is a bank manager. case being treated as a criminal case…whats your advice? further, mother of 4 year old refuses father to see his child, and stays in a different place from her son, leaving her son under thd custody of her father….her sons grandfather….help needed urgently

Mapule PhetlaPosted on11:23 am - Dec 28, 2018

Good day

My husband is maintaining his child every month he dont skip or make mistake and he is still paying installments that his ex wife made she left him in debs, now she took him to maintenance court, how does he deal with this issue in fact to win this case?

Elvorina UysPosted on7:48 pm - Dec 28, 2018

Good day, my daughters father threatened to take me to court. My daughter lives by me and I provide most of her needs. He only pays R600 per month and it has been like this for years. I’ve never asked for dime more. I just need to know if a case like this will stand in court? I feel this is just drama she causing but would like to be prepared. My daughter is 10 turning 11 in Feb. Should I instead take him to court?

    Our LawyerPosted on11:22 am - Dec 29, 2018

    Good day

    Either parent has the full right to take the other parent to court if they feel they are paying too much maintenance, or receiving too little. The court would, however, decide what is a fair amount. If you feel that he is paying too little, then you have a right to take him to the Maintenance Court.

Jade CapesPosted on4:09 pm - Jan 14, 2019

Hi there
How does the maintenance get calculated?
What aspects costs are taken into consideration when working this out?

JohanPosted on2:18 am - Jan 23, 2019

Good day

I was together with my ex-fiance’ for six years. We lived together for 5 years and a boy that is two years old now. Last years around end October we agreed that he can go visit his grand parents (her mother and father) in Kimberly for the school holidays. For a few weeks we where to spend more time together but it did not go as planed. After 3 weeks i ask her when is she planing to go and get my boy in Kimberly cos he needs to go back to creche because im still paying the creche. She then told me that she is tired of looking after him and he must stay till end December. I was not happy with this and i told her that i want my son back in my house. She than refused and told me if i want to she him i must go to kimberly to see him. I than called her mother to inform them that im coming to get him. Her mother than told me that they agreed that he will stay it kimberly and i have no say in the matter and if i just come they will call the police. After that everything went down hill and a month later i called everything off and ask her to leave, so we broked up. Because i broke up with her im not allowed to see or contact my son. I tried bellville court but they cant help me because my son if in kimberly so i have to go to kimberly childrens court. I than contact kimberly court but the women there told me that they cant help me if i dont know the mothers new address here in cape town and she refuse to give me the address. I would love to see my son, what can i do??

TangeniPosted on8:56 am - Jan 24, 2019

My son was staying with me all this years an two weeks ago we have argument where I told him you should go back to your mum house. An mum went an report for child maintenance. He went an stay only 2 weeks with his mum. Know I need advice

    Our LawyerPosted on9:17 am - Jan 27, 2019

    If your son is back with you, then the mother cannot make a claim for maintenance, unless she pays for certain expenses and incurs expenses while the child visits which she cannot afford to pay etc. It is best you resolve this issue at the Maintenance Court.

ViwePosted on9:12 am - Feb 5, 2019

Good day Sir
I would like to know what must I do if I don’t afford the school fees for school chosen by my ex wife, (she claims that she want him to attend private school to get better education, while I cannot afford such school because of the commitments I have including building a house because I cannot pay rental for my whole life,so I have loans which I’m paying). I suggested that the kid be taken to public school she claims she want better education for the kid of which I don’t afford the fees of such school. What are my rights as the father, please assist.

    Our LawyerPosted on5:00 pm - Feb 5, 2019

    Good day
    If you cannot afford the school fees, and the mother does not believe so, then she needs to take you to the maintenance court to resolve the issue. We cannot advise you not to pay the child maintenance your wife asks of you, therefore it is best to resolve the issue at the Court.

Kim BarnardPosted on5:59 pm - Feb 24, 2019

Can my husband’s X-wife (they have minor son of 13 and adult daughter 18) involve my income in there alimony battle? I have my own 2 sons that i am financing at university. She is now insisting on records of my income, assets and expenses. My husbands and i have no integrated financials…and also married out of com of property.. What is here rights on my incone?

    Our LawyerPosted on3:04 pm - Feb 25, 2019

    IT may be relevant to determine whether or not he is paying for all your household expenses and you are would too little. For example, if you earn double he does, and he pays for all the household and kids expenses, he would have very little to pay towards child maintenance for the kids of his ex.

AndrePosted on2:55 pm - Mar 16, 2019

Hi, I provide more towards maintenance other then the mother on a monthly basis. After a dispute of day day care cost, I advised her to handle all the small costs and give bigger costs to me, meaning buying baby food, nappies, medicine etc. Now she wants to take me to court for non payments i.e because I advised she must cover the day care cost. What are my rights as a supporting father, she denies applying for child grants(Sassa) as she would feel to ashamed for this.

    Our LawyerPosted on5:58 pm - Mar 16, 2019

    Good day

    It is best this issue gets resolved at the maintenance court. Your rights are to have contact and care to your child which would be in the child’s best interests. You also have a duty to support according to your means. The Court would assess what is reasonable.

TshegofatsoPosted on1:43 am - Jun 16, 2019

Hello,Last year I took my father to maintainance Court and I was in grade 12.Then I passed my grade 12 so the unfortunate part is that the course I wanted to do at the college which was finance it was full.Then they told me come back at the second semester which is July, the whole time he was sending money.Until this month he didn’t send money,I mean nothing.So he was communicating with my sister on the other side and he told my sister that he stopped sending money because I’m not at school,I’m not studying.And Second Semester at the college starts next year.So my question is, is it possible for him to stop maintaining me just because I’m not studying?

    Our LawyerPosted on11:30 am - Jun 16, 2019

    Good day
    His duty to support you comes to an end when you are no longer self-supporting. We advise that you approach the maintenance court if you are not self-supporting.

Tabisa MbanjwaPosted on2:12 pm - Jun 19, 2019

Good day,

I am a single mother to a 1 year old boy. His father never wanted him made excuses that he will be away for 4 years to study overseas. Now what i would like to know is that, is there anyway that i can still go to court and file for maintenance if he is away? And if yes, is there a way that maybe his parent could support the child. Please advise. I am based in Port Elizabeth.

Thank you

    Our LawyerPosted on2:23 pm - Jun 19, 2019

    Good day
    Yes, the court can assist you still. There may be a reciprocal agreement with the country he lives in. We advise that you approach the court ASAP.
    Yes, it is possible to claim against his parents as well.

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