The Maintenance Process

The Maintenance Process

maintenanceA child is entitled to reasonable maintenance for the essential needs for himself or herself, for example, clothing, housing, food, education and medical care. There is an obligation on each parent to provide the essential needs of the child. This legal duty is called “the duty to maintain” or “the duty to support”.

Both parents have the legal duty to maintain the child according to their respective means. The duty to maintain is based on blood relations and the duty furthermore extends to children who are adopted, born in or out of wedlock, born of the first or subsequent marriage.

Every Magistrate’s Court in South Africa also has a Maintenance Court, which deals specifically with all maintenance issues.

The Maintenance Court consists of various officials of the court:

•Magistrate

•Maintenance Officer

•Maintenance Investigators

There are different applications that can be dealt with in the Maintenance Court and different processes are applicable to each one:

1: Application for Maintenance

If you are a single parent, and the other parent of your child or children does not pay support in respect of the child or children and there is no court order, your first step will be to fill in the form called ‘Application for Maintenance Order’.

You will start the form with inserting your personal information under the section called ‘the complainant’.

At point number 1 (below your details), you will insert the details of the mother or father of your child or children details, they are then called ‘the defendant’.

Point number 2 they are asking you, why the defendant should maintain you. You are not asking the mother or the father of your child or children to maintain you, you are asking that the other parent maintain your child or children because you are the primary care giver of the child or children.

Point number 3, you will insert the details for the period that the father or mother of your child or children has not supported you with monthly cash contributions. There is a provision made for other contributions, such as education, medical care and clothing to be inserted should no contributions have been made.

Point number 4, you will leave for the end.

Point number 5, there is a column starting with ASSETS and INCOME. The portion of the assets and income must be filled in by stating what your current assets and current income is. You have a legal duty to disclose all your information.

Furthermore, there is column set out for EXPENDITURE, SELF, CHILD(REN) and TOTAL.

If we take a look at the first expense in the expenses column called lodging – you will, for example, spend R5000.00 a month on rent. You will insert the R5000.00 into the total column. In your home, it is only yourself and your two children living in the house. You will then take the R5000.00 and divide by three to give yourself the total of R1666.67 and your children expense of the rental will be R3333.33 (R1666.67 times 2). You will continue with all the expenses using the same formula.

Certain expenses are not divided and only apply to the children. For example, school fees. The school fees amount will only be inserted into the children’s column and not shared amongst the family. The same will be applied for children’s clothing and uniform costs.

At the end of the application form is a TOTAL EXPENDITURE. You need to calculate the total expenses for yourself, your child(ren) and the total household expense.

 

After your calculation has been done, you will then return to point number 4 and after having regard to the total need (expenses) of the child(ren), you will insert an amount under AMOUNT that you wish to claim for, the name of your child(ren) and the birth date of your child(ren).

Under the box, that contains the amount you seek to claim, there is a space for OTHER CONTRIBUTION and this will include education, medical, clothing, etc.

Once you have completed your form, you will then sign the form in front of a Commissioner of Oaths ( SAPS / Bank manager / Post office ) and the Commissioner of Oaths will sign in full and stamp the form with their official stamp. You will then attach a copy of your child(ren) birth certificate, together with a copy of your identity document.

Your attorney or you personally will then take the form to the clerk of the maintenance court. The clerk will process your application and give your attorney a page that contains your first court date.

The page is called a ‘Directive’. Your attorney will take the Directive to the Sheriff’s office to serve your application together with the Directive on your child’s(ren) mother or father. The Sheriff will explain to the Respondent when the court date is and what the application is for.

Once your court date has arrived, you as the Applicant will need to be at court. Once your name and the Respondent’s name have been called by the maintenance officer, the maintenance officer will subpoena the Respondent to another court date.

Your first court date is not an actual court appearance. The Respondent is only at court on a Directive to establish whether he intends to have legal representation or not and to secure his attendance. If he fails to attend or does attend it is necessary for the Respondent to be subpoenaed and if in the future he does not attend court, a Warrant of Arrest cannot be issued.

You do not have to appear in court on your first date.

Your matter will be postponed to your next date for the Respondent’s attorney alternatively for settlement discussions.

On the second date that you go to court, this day is called ‘Your First Appearance’.

The reason why this day is called your first appearance is because once the Maintenance Officer has called your name, you will appear in Court in front of the Magistrate.

At this stage, the Maintenance Officer, your Attorney and yourself, do not know the true income of the Respondent and the Respondent’s true financial position. The Respondent is not aware if the true needs of the child(ren) in your application is correct, therefore, the Magistrate will postpone your matter for +-1 month for ‘Document Exchange’.

Your attorney will request specific documentation from the Respondent, such as his/her salary slip for the last three months, bank statements for the last three months and proof of any expenses. You will need to provide documents to your attorney which supports your maintenance claim. Your attorney will present a bundle to court that consists of proof as to the true needs of the child(ren). It is vital that you keep proof of all expenses in order to prove to the court the child(ren)’s and household expenses are in fact the position as claimed in your application for maintenance. Due to the fact that you do not have any maintenance order, you may request that an interim maintenance order be made pending the finalisation of the matter. The interim maintenance amount can be agreed upon and paid monthly until the final order has been made.

Once the financial documents have been exchanged, a new court date will be given by the maintenance officer. The next step will be the ‘Informal’.

The new court date for the informal must suit the court’s diary and depending on the Maintenance court’s roll, the waiting period is determined by the availability of the court. The maintenance officer will give you a specific time to arrive at court on the given date.

At the informal, you, your attorney, the Respondent and his/her legal representative together with the maintenance officer will have an informal meeting in the maintenance officer’s office. At this stage, all the documents will be scrutinized by the maintenance officer. The maintenance officer is an independent third party and will be objective to all parties. There is a possibility that your matter will be settled during the informal once an agreement has been reached. If there is an agreement reached the maintenance officer will prepare a consent form and present the consent form to the Magistrate to make the consent form an order of court. The Magistrate will read the consent form to you and the Respondent in court to make sure this is the agreement reached. Furthermore, the Magistarte will explain to the Respondent the consequences should he/she fail to meet their maintenance obligation.

If no agreement is reached during the informal stage, the maintenance officer will postpone your matter in front of the Magistrate for a formal enquiry (trial).

The formal enquiry in the maintenance court is run like any other civil trial in the magistrate court. This will mean that the parties must appear in court and give oral evidence on their financial positions as set out in the paperwork which has been exchanged between the parties and be subjected to questions from the court and the other side.

 

2: Application for an increase or reduction in maintenance

Should the amount of maintenance that is being paid to you by the father or mother of the child(ren) not meet the sufficient needs of the child(ren), you will need to apply to court for a substitution of the existing maintenance order. This means that you will be applying to the Maintenance court for an increase in the monthly maintenance amount that you receive from the mother or father of your child (ren).

Should the amount of maintenance that you are paying to the mother or father of your child(ren) exceed your monthly income in that you cannot afford to meet your monthly obligation for the payment of maintenance, you will need to apply to court for a substitution or discharge of existing maintenance order. You cannot simply stop paying. For example – you are injured and become disabled and are unable to work or you are fired / retrenched – you need to immediately approach the Maintenance Court for an application for a suspension / reduction in your maintenance obligations.

 

The form that you will need to be processed at court in the event of any of the above situation is called “SUBSTITUTION OR DISCHARGE OF EXISTING MAINTENANCE ORDER”.

 

You will start the form with inserting your personal information under the section called ‘the deponent’.

At point number 1 (below your details), you will insert the details of the mother or father of your child or children details, the person against whom the maintenance order was made.

You will then continue to fill in the amount that you are currently paying or receiving in respect of the child(ren).

You will then continue to list any additional contributions that are made towards the child(ren).

You will need to attach a copy of the existing order to the application form.

Point number 2 they are asking you the amount that you wish to increase or decrease the maintenance amount too.

Point number 3 they are asking you why should you receive an increase in maintenance for the child(ren) or why are you seeking a reduction of maintenance in terms of the existing order.

Such reasons will be dealt with below.

Point number 4, there is a column starting with ASSETS and INCOME. The portion of the assets and income must be filled in by stating what your current assets and current income is. You have a legal duty to disclose all your information.

Furthermore, there is column set out for EXPENDITURE, SELF, CHILD(REN) and TOTAL.

The same formula dealt with in the Application for Maintenance Order above will be applied to the situation, whether you are asking for an increase or decrease.

At the end of the application form is a TOTAL EXPENDITURE. You need to calculate the total expenses for yourself, your child(ren) and the total household expense.

Once you have completed your form, you will then sign the form in front of the Commissioner of Oaths (SAPS / Bank manager / Post office) and the Commissioner of Oaths will sign in full too. You will then attach a copy of your child(ren) birth certificate, together with a copy of your identity document.

Your attorney or you personally will then take the form to the clerk of the maintenance court. The clerk will process your application and give your attorney a page that contains your first court date.

The same process will be followed by court for the Substitution or Discharge of existing Maintenance Order as the process for Application for Maintenance Order.

The Maintenance Officer needs to enquire at your court date as stipulated in the Directive as to the reasons for you seeking an increase or decrease in maintenance.

When applying for an increase in maintenance, you would firstly need to determine the reasonable need of the child(ren) on a monthly basis. The standard of living of the child(ren) are accustomed too will be taken into account. Maintenance is not a wish list and attempting to rely on inflated expenses only frustrates the process of obtaining any increase.

An application for a reduction in maintenance will only be entertained by the maintenance court if a change in circumstances can be established. There would need to a change in either parent’s financial situation in order for your application to be entertained.

Proof of the allegation made to the reasons for the maintenance of the child(ren) to be increased or decreased will be the most important factor and determining factor as the time the process of the application can take.

 

 

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