Source: A simple guide to South African Family Law by Nthabiseng Monareng

Maintenance is the duty to support someone else financially which applies in the following circumstances:

·         There must be a relationship between the parties and the parties must be legally obliged to take care of each other.

·         The person requiring maintenance must need financial help.

·         The person who is liable to pay maintenance must be in a financial position to afford the maintenance.

Every child has the right to food, shelter, clothing, medical care and schooling. Parents have a legal duty to ensure that children are provided with these, irrespective of whether the child is born within the marriage, or outside the marriage, or has been adopted by them.

There are three ways in which a maintenance order can be obtained:

A parent who wants maintenance for a child or children sues the other parent for maintenance in the maintenance court, which is the local magistrate’s court. The other parent is then summonsed to appear in court. The parents are given a date to appear in court and the court will make a decision regarding maintenance.

The parents agree in writing to the content of the maintenance order to be granted. A copy of the written consent is then handed to the maintenance officer in court and is made an order of court.

This happens when the parent responsible for maintenance does not appear in court for the maintenance hearing, although he or she has been subpoenaed and has knowledge of the date and time of the maintenance hearing. The court can make a maintenance order against the parent in his or her absence which the court considers to be an appropriate order.

1.    The parent suing for maintenance (called the applicant) must go to the maintenance court. The maintenance officer will assist the applicant in lodging the maintenance claim and in completing the forms.

2.    The applicant must bring his or her identity document (ID), the child’s birth certificate, payslip, copies of living expenses, bills and receipts. These should include rent, school fees, groceries, transport, and medical bills.

3.    The applicant must also bring contact details for, and the home or work address of, the parent responsible for maintenance.

4.    Summons will be served on the parent who is sued for maintenance to appear in court.

The maintenance officer will send a letter to the sued parent to come to court. The parents, together with the maintenance officer, will sit together to discuss and decide how much maintenance should be paid. If there is an agreement, the maintenance officer will ask both parties to sign a form consenting that the maintenance agreed upon be paid, and that form will be made an order of court.

If the parents are unable to reach an agreement, the matter will be heard in court. The presiding officer will consider all relevant information, give each parent a chance to state his or her case, and a decision will then be made.

In deciding how much maintenance money to order, the court will work out how much the child needs for his or her maintenance, taking into account food, clothing, school, extramural activities, and so on.

The court will look at:

·         The reasonable costs of raising the child.

·         How much the mother earns.

·         How much the father earns.

·         Each parent’s financial obligations.

·         Whether the sued parent can afford the amount being claimed.

It is important to note that there is a difference between a parent who refuses to pay maintenance and one who cannot afford to pay maintenance. The one who refuses to pay maintenance money simply refuses even though that parent may have the financial means to pay. The one who cannot afford to pay maintenance does not have the financial means to do so.

1.    The other parent (the applicant) has to lodge a complaint at the maintenance court.

2.    The maintenance officer will summon the defaulting parent to appear in court.

3.    If the parent does not appear in court, the court can order the following:

The money will be deducted from the salary of the defaulting parent.

·         The applicant must apply to the maintenance court for the attachment of emoluments.

·         When the emoluments attachment order has been granted, the maintenance officer must give notice plus a copy of the maintenance order to the employer of the defaulting parent to make payments.

The property of the defaulting parent can be attached and sold. The proceeds of the sale are then used to pay for the maintenance.

·         The applicant has to apply at the maintenance court for the authorization of the issue of a warrant of execution against the movable property of the defaulting parent and, if it is insufficient, against the immovable property.

·         The warrant will be issued by the clerk of the maintenance court and given to the sheriff to serve.

The defaulting parent can be arrested.

·         You have to lay a complaint at the maintenance court.

·         A date for the hearing will be set and the defaulting parent will be summonsed to attend. If the defaulting parent does not attend the hearing, a warrant for his or her arrest will be issued.

In terms of the Children’s Act, a child is a person under the age of 18 years. If the child is above the age of 18 years and is in need of financial assistance, he or she has a right to claim financial support from his parents.

Maintenance of a child stops once the child becomes self-supporting. If the child marries, his or her spouse is responsible for maintenance.

If parents of a child cannot afford to maintain the child, the duty falls on the grandparents on the sides of both parents. If, for example, the father of your child is not working and cannot afford maintenance but he has parents who can afford to maintain the child, the grandparents can be sued for maintenance. This also applies to a situation in which the mother whose financial support the child needs cannot afford maintenance, but her parents can.

There are certain circumstances in which a child can be held legally liable to support a parent. A parent who requires maintenance has to prove that:

·         He or she is not working or earns too little to support himself or herself.

·         He or she has no other source of income or means whereby they can generate sufficient money to support themselves.

·         Closer relatives of the parent cannot support him or her (for example, his or her spouse).

The court will hold a hearing and decide whether the child can afford to maintain his or her parent. If it is proved that the child can afford to maintain the parent, the child will be ordered to pay maintenance. The parent’s maintenance will be restricted to basic needs such as food, clothing, shelter and medical care.

When a couple gets married, they have a duty of support towards each other. This duty includes providing accommodation, clothing, food, medical services and other necessities for each other.

The duty to support each other is the responsibility of both partners. This means that if, for example, a husband does not have the financial means to support himself, the wife has a legal obligation to support him, and vice versa.

During the marriage, if one of the spouses is not working and the working spouse does not contribute financially, the other spouse can apply to the maintenance court for maintenance.

The duty of support between married spouses comes to an end when the marriage ends, although a spouse can apply for maintenance against the former spouse during the divorce procedure or claim from the deceased spouse’s estate.

When a spouse dies, the surviving spouse can claim maintenance against the spouse’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. The executor of the estate has a duty to pay the maintenance.

The following factors are taken into account when maintenance is claimed:

1.    The amount available in the deceased estate.

2.    The surviving spouse’s existing financial needs and obligations.

3.    The duration of the marriage.

4.    The surviving spouse’s standard of living during the existence of the marriage.

5.    The surviving spouse’s age at the time of the deceased’s death.

6.    Any other relevant factors.

If the marriage ends in divorce and a spouse needs or foresees that he or she will need financial assistance in the future, a maintenance claim can be made against the other spouse in terms of section 7 of the Divorce Act.

The divorcing couple can sign a settlement agreement in which they include the terms of maintenance. In the agreement, the divorcing couple can decide on the amount and the duration of the maintenance. This agreement should then be made an order of court by the court granting the divorce.

If there is no agreement, a divorcing spouse can apply to the court hearing the divorce for a maintenance order against the other spouse.

In deciding whether to order maintenance and the amount that should be paid, the court will look at the following factors:

1.    Both spouses’ earning capabilities and their existing or prospective income and other assets.

2.    The spouses’ financial needs and obligations (both the husband and wife’s financial needs and obligations).

3.    The applicant spouse’s age.

4.    The duration of the marriage (how long the marriage lasted).

5.    The applicant spouse’s standard of living while they were married.

6.    Any other factor which might be relevant.

Once the court is satisfied that there is a need for maintenance, it will make a ruling that maintenance be paid to the spouse who applied for it.

If during the divorce proceedings you do not need maintenance but can foresee that you will need financial support in the future, you can apply for what is known as token maintenance.

Let’s say that during divorce you have a part-time job or you are under a contract and are not sure if in the future you will be employed. You can apply for maintenance and ask the court to give you R1 or R10 monthly (token) maintenance. If in the future you need financial support, you can then apply for an increase of this amount at the maintenance court.