Child maintenance legal issues might sound simple, compare to, for example, a criminal case of fraud. However, a child maintenance case could be much more complicated, challenging and exhausting. That, however, does not have to be the case. At least not always. Find out some of the tips and tricks provided by Advocate Muhammad Abduroaf, a family law expert with more than a decade of experience in family law, and child maintenance matters. Read on to find out some tips and tricks of the trade. Valuable advice is given on what to do through the maintenance court process.(021) 424 3487
The focus of this article is not to explain how child maintenance work, or how to apply for child maintenance. There are many articles written on that topic. But in short, parents must pay according to their means. So, if a child’s expense the month is R 60 (obviously this is a fictitious example) and the father earns R 500 a month and the mother R 250 a month, then if all else is equal, the father should contribute R 40 towards the minor child’s expenses, and the mother, R 20. Now that is the long and short of the matter.
However, other factors also play a role. They include the necessary expenses of each parent, which determines how much they should contribute, as well as what assets the parents own. For example, if a father earns R 100 a month, and the mother R R800 – 00, the father would pay the majority of the minor child’s expenses if he owns other assets worth R 100 000 – 00 and the mother none.
Now we deal with the challenges. The child costs R 60 per month, but the parent who is supposed to pay maintenance, the father, in this case, is only willing to pay R 10 per month. This is what he says he can only afford and what he believes the minor child needs. He says that if he pays more, the mother would use the money for herself. But the facts as in the example above, the father earns R 500 a month and the mother, R 250. Therefore, the father should pay R 40 and not R 10 as he offers.
The challenge the mother now has is to prove that the father can afford to pay R 40 and not R 10 as he offers. The mother is worried, that should she go to the maintenance court for help, she would only get R 5 because that is what the father said he will pay should she go to court. What is our advice? Go to Court!
If a parent does not pay reasonable child maintenance, the maintenance court can enforce compliance. This they would do through the Maintenance Court enquiry process. Once a maintenance order is made, it becomes a criminal offense not to adhere to it. The court may even issue a warrant attaching property, or salary.
Each maintenance court has a maintenance investigator. What this investigator does is gather evidence in a maintenance court case. However, in practice, no one may tell you that there is a maintenance investigator who could assist you in your case. This could be because of the huge amount of maintenance cases that come through the doors of the court.
Now, this is where it becomes challenging. The maintenance court can only make an order against a parent if there is evidence that he or she can afford the maintenance claimed, and obviously, the amount claimed is fair. The problem in practice is, the mother alleges that the father can afford the child maintenance, but she has no concrete evidence to back it up. The father is also not forthcoming, and only shows evidence that he cannot afford the amount claimed. The mother knows that he can afford the required amount due to his standard of living and what she experienced while they lived together.
What follows is a list of things you can do, either yourself or through the maintenance court. However please note that the court won’t entertain your application for child maintenance should it be excessive. In other words, if you know the father cannot afford the amount claimed, or that you are intentionally claiming too much; then, in that case, you would be wasting your time. If you have a legal representative, you would be wasting money as well.
Insist that the maintenance court instruct the maintenance investigator to investigate the financial affairs of the other parent. This you should even more so insist on if the father does not even provide the court with a copy of his salary slip and outline of expenses.
Ask the maintenance court to issue a subpoena against the father’s employer for the salary advice of the father. Also, request details of the father’s pension interest the father may have.
Obtain the father’s bank statements. Here you should ask the court to subpoena various banking institutions for bank statements of the father. Bank statements hold in them valuable information about the lifestyle of a person. You may find out that the father spends half his money on his cell phone or luxury clothing. You can use this information to show the court that the father can tighten his belt and spend more money on his child. What sometimes happens is, you may find additional income coming into the father’s banking account.
Have the maintenance court obtain a credit profile of the father. From the profile, valuable information can be obtained. For example, where he last applied for credit, employment and residential details. If the father says he does not have money, but he applied for credit to purchase a new car, clearly there is money.
These days, many people publish their lives on social media. If the father, in this case, keeps loading pictures and posts of how he lives the good life; that information may be used to show the maintenance court that the father lives a life different than what he wants the court and you to believe.
Many people also make use of LinkedIn accounts. On it, they provide updated employment details. This would be useful to show the court should the father say he is an admin clerk. but on LinkedIn tell the world he is a manager.
What may be useful, is to do a property search on the father. Here you would find out what property that person owns. For example, the father may rent a house, but own a house in a different province where he obtains rent. That house he could have inherited.
Each case is different. What would work in one maintenance matter, won’t work in another. For example, if someone is self-employed, and only get paid with cash, the dynamics are different. There won’t be any bank statements or payslips. In such a case, you need to be creative. Maybe ask questions to clients of the father and find out what he does and charges. If you can obtain the names of people the father does business with; that would be very useful. You may provide that information to the maintenance court and the investigator could follow up on it. If the father sees that you are getting somewhere, he may decide to pay a fair amount.
Your maintenance case is largely dependent on you proving that your child needs the requested amount. If you do not have proof, or cannot prove it, even if you show that the father can afford it, the court won’t order him to pay it. The court would only order him to pay what is fair and proved. Therefore, always ensure that you keep proof of your income and expenses up to date and ready to provide it to court.
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