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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Joanne Anthony-Gooden Attorney-Maintenance

How to calculate maintenance?

A maintenance enquiry is a 2 staged approach.

Firstly, the reasonable need of the child must be determined and thereafter the affordability of each parents is taken in to consideration.

You need to allocate the child’s share of the household expenses separately from the adult’s expenses on the prescribed document which is submitted to the Maintenance Court.
The parents liability to contribute is based proportionately on their available income (means).

To determine the needs, the following formula is applicable:

 

(parent’s gross income)                            X            (child’s needs)
(total gross income of both parents)                                        1
= R0.00 (parent’s contribution)

 

Maintenance will need to be reviewed regularly, depending on the changing needs of the child or the financial position of the parents.

Maintenance is capable of variation and does not remain fixed permanently.

Changing circumstances such as a rise in the cost of living and other factors can necessitate that a variation is required of the existing maintenance order. A maintenance court can make the following orders -

• set aside an existing maintenance order;
• make a new maintenance order;
• decrease a current order;
• amend a current order; or
• change an existing order.

Either parent can apply to the Magistrate’s Court where the children reside for a variation of the current maintenance order, but only if there is a material change in their circumstances.

An example will be if the father becomes disabled / retrenched or remarries; and, in the mother’s case, where a child’s needs have changed – specific educational needs or sporting requirements.
The law is clear that a man cannot “feather a second nest” to the prejudice of the first. If a father remarries and then has to support a "second" family, this financial obligation may not impact negatively on his "first" family. A father may not claim that the needs of his second wife is a reason to reduce maintenance in respect of the children of his first wife.

Child Maintenance

A child is entitled to reasonable maintenance to provide for clothing, housing, dental and medical care, education and training, and, entertainment as well as other necessities of life in line with their social position, lifestyle and financial ability of both parents.

Parents and children have a reciprocal duty to support each other.

Both parents have a duty to maintain the child proportionately, that means pro rata according to their respective incomes. A parent’s duty to support his child arises out of operation of law. What is ‘reasonable’ will depend on circumstances of each particular child and the family, and factors to be considered are the family’s standard of living, the child’s health, the parent’s income and the cost of living.

Monthly cash payments

Monthly cash payments

The parent who has the child in their care is entitled to receive a cash payment of maintenance on a monthly basis from the other parent to be allocated to a portion of the child’s accommodation expense, groceries, toiletries, clothing, electricity, water, fuel, transport, haircuts, entertainment, pocket money, etc. The Divorce Order or maintenance order is the source document which will state which parent must pay a cash component each month. Maintenance is paid in advance each month. Maintenance is not paid in arrears. The cash component of maintenance generally increases annually on the anniversary date of the divorce order or first maintenance order by the percentage change in the headline inflation rate (also known as the headline Consumer Price Index), as notified by Statistics SA (or its equivalent) in respect of South Africa for the preceding 12 months.

Medical expenses

Medical expenses

Both parents are liable pro rata according to their means for any reasonable and necessary medical expenses incurred in respect of the child which would include - medical, dental, surgical, hospital, orthodontic and ophthalmological treatment needed by the child, as well as any sums payable to a physiotherapist, occupational therapist, speech therapist, practitioner of holistic medicine, psychiatrist/psychologist and chiropractor. Parents must also cover the cost of any medications ( prescribed or over the counter) and the provision, where necessary, of spectacles and/or contact lenses. This can include retaining the child on the parent’s medical scheme, and pay the monthly premium (and escalations thereon). The parents can agree to share these expenses in equal shares.

Educational costs

Educational costs

Educational costs normally include, but are not limited to, all pre-school and aftercare fees, school fees, additional tuition fees, school outings, camps, school lunches, extra-curricular school and sport activities, all extramural activities in which the child participates, including club fees and sport tours (and the travel and accommodation expenses related thereto), school books, stationery, uniforms and any equipment (including computers) needed by the child at or relating to school.

Tertiary educational costs

Tertiary education costs

Tertiary education is not a right - where it is within the parents’ means, parents are obliged to pay all or part of the reasonable costs of the child’s tertiary education, for as long as the child shows due diligence and aptitude and continues to make satisfactory progress. Such costs can include university fees and/or fees for any institution of higher learning attended by the child, accommodation and travel/transport expenses, and any books and equipment required. The duty of support only comes to an end when the child becomes self-supporting. Although 18 is the age of majority, the duty to support can continue after this age, but the child must then claim maintenance directly from the non-resident parent. The fact that a child is working does not necessarily mean that he/she is self-supporting and continued but reduced maintenance may be necessary.


maintenanceIf you have other maintenance related questions, why not follow the link FAQ and find answers to popular questions.


 

Child and Spousal Maintenance

Child Maintenance

Once a child has reached the age of 18 which is the legal age of majority in South African law, a parent cannot claim maintenance on behalf of a child. The child would have to institute action in his/her personal capacity against that parent in the Maintenance Court having jurisdiction in the area where the child is resident.

You cannot refuse to allow a parent contact because a parent has stopped paying maintenance.

When maintenance court makes an order regarding maintenance, such an order is never a permanent order, it can be varied as circumstances change over time. You would need to bring an application for an increase or reduction in maintenance in the Maintenance Court.

Parents must use both of their incomes and, if necessary, their capital to pay maintenance. This means that if a father/mother has no income but has assets, he/she will not be able to avoid paying maintenance. He / She would have to sell his / her assets to pay maintenance. This would prevent a parent from evading his/her duty to pay maintenance by giving up their job and becoming a student.

Spousal Maintenance

The cases at present involving maintenance required by spouses are brought by women. This would also apply to the ex-husband seeking maintenance from his ex-wife. Neither spouse is automatically entitled to spousal maintenance on divorce.

South African law favours the ‘clean break’ principle, and our courts encourage that post- divorce the parties must strive to become economically independent of each other as soon as possible. The court has a discretion to award spousal maintenance.

The duty of support

During a marriage, each spouse owes to the other a reciprocal duty of support. This duty of support would be based on need of that spouse and that the other spouse’s ability to meet that need financially. This duty of support would include accommodation, clothing, food, medical services and other necessities, and a factor to consider is the parties’ social standing, their income at their disposal and the cost of living. The duty to support each other is the responsibility of both spouses and means that if, for example, a woman does not have the financial means to support herself, her husband has a legal obligation to support her, and vice versa.
This reciprocal duty of support comes to an end on death or divorce. The Divorce Act 70 of 1979 allows for court orders relating spousal maintenance. Similarly, 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.

Spousal Maintenance is not a right

Neither spouse has a statutory right to maintenance. The Divorce Act makes it discretionary. The court has a discretion to make a maintenance award which includes the power to make no maintenance award.

Maintenance Forms

J101 E Application for maintenance order

J107E Substitution or discharge of existing maintenance order

J214E Consent and maintenance order

J256E Application for variation

APPLICATION FOR ENFORCEMENT OF MAINTENANCE ORDER

J435E Application for setting aside of a warrant of execution

J438E Application for suspension amendment or rescission of an order

J458E Application for suspension amendment or rescission of an order

J470E COMPLAINT FORM ARREAR MAINTENANCE

 

 

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