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TAKE NOTE! There is NO Child Maintenance Payment Holiday during the National Lockdown Period!

There is NO Child Maintenance Payment Holiday during the National Lockdown Period!

There is NO Child Maintenance Payment Holiday during the National Lockdown Period! If the other parent is refusing to pay child support during the National Lockdown period – what can you do?

 

South Africa is now in a state of National Lockdown. As things stand at present, children are not to be moved between homes during this period. This is to limit the spread of COVID-19 / Coronavirus. A lot has been written on the topic of moving children during the lockdown period by co-holders of parental responsibilities and rights. Have a look at a few of these articles written by Our Lawyer on this topic:

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

For those who do not have much time to read further, there is no child maintenance payment holiday during the lockdown period!

Parents and lawyers should focus on what is best for the child

We at Our Lawyer (Pty) Ltd, when working with children matters, always focus on what is best for the child, and not necessarily the parents, or even our client who pays us for our services. Children are a vulnerable sector of our society, and their interests should be vehemently protected. They are our future and the leaders of tomorrow. Who knows, out of your home could emerge the next Olympic star, or State President one day.

The best interest of the child principle applies to all situations – not only during the lockdown but other periods as well. It disappoints us when parents do not want to pay adequate child support towards their children in these trying times.

Complaints from parents where the other parent does not want to pay child maintenance during the lockdown period

We have received queries from parents where the other parent is not paying child support during the National Lockdown period. This for good reason concerns us.  We felt it necessary to write an article on this issue. Does the national lockdown afford parents with a child maintenance payment holiday? The same as offered by some loan banks that allows you to miss the occasional monthly payments. Some banks are offering it to their customers due to the national lockdown. Now let’s get into it.

What is child maintenance usually for?

Each family is different, and therefore each child’s needs vary. What would be necessary maintenance for a child of 8, would not be necessary for a child of 13. The same applies to children of the same ages living in different homes. The usual maintenance provisions would include any of the following:

  • Groceries, Water and Electricity, Laundry
  • Telephone, Internet, airtime
  • Domestic Worker, Garden Services
  • Clothing, shoes
  • Transport costs, vehicle maintenance, repairs
  • Medical aid and medical expenses not covered by the medical aid
  • Holidays, Entertainment, Recreation, DSTV, Netflix
  • Reading material (books, newspaper etc)
  • Pets food, litter, Vet
  • School projects, assignments
  • School fees, Summer and winter uniforms, shoes
  • Extra-Mural (incl. clothes), stationery, textbooks, sports equipment (incl. clothing)

For some families, many other items would be included. An in others, only half the items above would be applicable.

Child maintenance payment scenarios

There are usually two (2) scenarios where child maintenance gets paid:

  1. The first scenario applies where there is a maintenance order in place. This could have been made by the maintenance court, or the divorce court when the parties divorced. Should a maintenance court have made the order, it would usually mean there was a complaint about non-payment or paying too little. This is not always the case. Either way, the court making the maintenance order would have had to be satisfied that the order is in the child’s best interest.
  2. Then there is the second scenario where there is no maintenance order in place. The parents were never divorced and neither party took the other to the maintenance court. The parties pay maintenance based on an agreement they have, or the paying parent just pays as he or she feels. In the scenario, no court determined whether the amount being paid is fair or not.

Is Non-compliance with a Maintenance Order allowed?

When the maintenance order was made, various factors where considered. Included in those was the fact that the child has a holiday. Therefore, under ordinary circumstances, a parent cannot say they do not want to pay child maintenance during the December holiday, because the child is with them during the entire period. If the court order says that child maintenance is R X a month, that includes school holidays as well.  There is, therefore, no payment holiday when it comes to child maintenance where a court order is in place. And if there is no order in place, payments must continue.

Can parents agree to relax the maintenance order during the National Lockdown period despite the Maintenance Order being in place?

It must be noted that children usually cost much more during the holidays as opposed to when they are at school. They eat more and also want to go out more. The latter may not apply during the lockdown period. More electricity is used, as well as water. School fees and medical aid must still be paid.

Furthermore, caregivers may not have any income during this period. However, if the parents come to an agreement for less maintenance to be paid during a specific month, and for it to be repaid the following month, that is in order. This could be because the paying parent is not working during the lockdown. However, unless the paying parent really cannot afford to pay the ordered maintenance, we do not advise that any relaxation of the maintenance provisions are made.

What to do when there is no maintenance order in place?

If there is no maintenance order in place, one would assume that the parents have a cordial agreement when it comes to their child’s expenses. The primary caregiver did not see it as necessary to approach the court for a maintenance order to be in place. On the other hand, a parent may decide not to proceed with seeking a maintenance order because he or she is afraid they may get much less than what is being paid. Then there is a further scenario, where a parent does not want to proceed with a child maintenance claim, as he or she does not want the other parent to be in the child’s life. There are many other reasons as well.

Nonetheless, if a parent has a maintenance agreement in place, that agreement must be fulfilled. The same principles with relaxing the agreement as outlined above would apply here as well. This would be in the child’s best interests. Now we shall deal with what a parent can do if the maintenance obligations are not adhered to during the lockdown period, either in terms of a court order, or agreement.

Noncompliance with maintenance orders and non-payment

There are certain directives in place during the lockdown period for the maintenance courts. If you are not receiving maintenance, and there is no order in place, you may make a first time application to the maintenance court. If there is a maintenance order in place, but it is not being adhered to, then you may approach the maintenance court for its enforcement.

The relevant regulations in respect of the maintenance court during the lockdown period

In terms of direction 8(b)(i) and (ii)issued in the Regulations (No. R418) issued on 28 March 2029 in the Government Gazette (No.43167), the Maintenance Court may deal with maintenance matters during the lockdown as follows:

  • First time applications for maintenance will only be dealt with if complete information is supplied in respect of required names, surname, telephone or cellular phone number, employment or business address, banking details of the Respondent; and
  • Application in respect of enforcement of maintenance orders

We, therefore, cannot stress it enough, for those who want to know whether there can be a payment holiday, our answer is no. All maintenance obligations must be adhered to. The maintenance courts are still in operation, and defaulters would be dealt with accordingly.

 

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18 thoughts on “TAKE NOTE! There is NO Child Maintenance Payment Holiday during the National Lockdown Period!

  1. The father of my child gives me run around. He doesn’t want to pay the maintenance, he says he can only afford R1500. He dodge the police and miss court date without notice. He’s an advocate of the court. He refuse to bring supporting documents of his expenses so that we can see his affordability towards our son. How do I report his behavior to the chambers?

  2. Hallo I hope you can help. I have not receive maintenance for my child for three months now and it’s court order. When I went to the Court here in Bloemfontein they told me they can’t help me during lockdown what about the people who depend on that money for their kids.

  3. My ex husband wont be receiving income in the lockdown period as he is in the building industry. He is renting and and is already behind on his rent. He has no assets to sell and already been blacklisted so wont be able to get a loan. What am I to do in this case conserning maintenance?

  4. Please can you tell me. If my ex husband’s salary is less than normal during lockdown. Does he still.pay full maintenance???

  5. HI, My ex husband have only paid R250.00 since the start of the lockdown, opposed to R2600.00 per week during lockdown period. I have given him a two week break to see to his new family. He is an ESSENTIAL worker during lockdown but refuses to pay. He has money to make apple cider Hunters Dry beer and all the Whatsapp messages he is making means to make alcohol, next he is going to make pineapple beer. He got money sent from his sister who lives overseas but has not paid a scent towards his kids. We have a maintenance court order in place. He is an ESSENTIAL worker. To me he is taking advantage because he often moans to extended family that he is paying too much maintenance, yet school fees alone comes to R6600.00 pm. Please advise.

  6. Hi, i had my son before lockdoen. And consistently pay maintance. With the kids being at home, they eat more, use more water, use more electructy etc. Therefore my expenses has increased alot. The mother is still requesting maintenance money for this month, but i still have the child this month due to lockdown being extended and she hasnt contributed anything and also earns a salary durig this time . Do i still have to pay her even though the child is still with me ?

  7. I have an existing maintenance case where my ex is outstanding in maintenance fornover R100000 since 2017. Will the lock.down now beable to be used as an excuse for him not to pay the arrears and current maintenance despitebthe case being ongoing since August 2018?

  8. I would like to enquire as to my current situation. My son has been visiting me since before lockdown. And is still with me and will be with me for the remainder of the lockdown. However his mother is still demanding maintenance for him. She is working and earns a salary. However i am supporting him and his needs now.

  9. I am currently paying maintenance for my two children. Since the lockdown has started, I have been put on unpaid leave, and therefore will not be able to pay my maintenance at the end of April. What can I do legally to ensure that I do not go against my court order to pay maintenance?

    1. Good day
      You should ensure that you find a way to pay the child support. We suggest taking out a loan, selling something etc. It may be very hard during the lockdown. Your children need maintenance, and if you do not pay it, they may go hungry etc.

  10. I am scheduled for a mediation session at the Johannesburg maintenance court on 16 April 2020. I am in Johannesburg and my parents are in Limpopo, since the lockdown has been extended will i have to go to court?

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