The Duty to Maintain
Every child has the right to reasonable maintenance. It is a legal obligation of both the biological parents, legal guardian, or if they cannot pay child maintenance, the duty of the grandparents to pay child maintenance.
The duty of child maintenance, such as providing the child, with housing, clothing, food, medical care and education, or other necessary fundamentals of life is an obligation which is a legal duty – also known as ‘the duty to maintain’.
Child Maintenance is a responsibility that falls on the shoulder of a relative, either through blood or adoption, or marriage.
There are three conditions involved in the claiming of support:
Establish a duty to support.
The people on whose behalf the relief is claimed are unable to maintain themselves.
How much Child Maintenance is payable?
What constitutes reasonable support when assessing the upbringing of Minor Children?
It should be taken into consideration when making this assessment that, the necessities include food, clothing, education, medical expenses and housing.
To determine the reasonableness will depend on the standard of living of the family.
Say, the child has always attended an expensive Private School, and the parents get divorced. The Maintenance Court will likely grant an order that the child can still attend the Private School if the school fees and other school-related costs are within the means of the Parent (s). Child Maintenance Orders can take on different forms and usually include the following or a mix of them: Cash Components
That the Non-Primary Parent will make a cash amount contribution to the Primary Parent. Payments can be made at the local Magistrate’s Court and other designated Government Offices.
Alternatively, that the money can be handed over directly (make sure that you have proof of payment) or via a payment into a designated bank account.
Otherwise, by means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from their employee’s salary, in accordance with the Maintenance Act, 1998. Education and School Payments
Child Maintenance Payments may include the cost of attendance or the cost relating to attendance and a variety of other aspects such as aftercare, lunch, outings, books, stationery, uniforms and sports activities. Medical Expenses
Medical Care is a vital Child Maintenance Expense, and the duty to pay Child Maintenance may include the cost of a Medical Aid. Orders made by the Court could include an Order for:
contribution from the father towards payment of laying-in expenses and maintenance from the date of the child’s birth up to the date upon which the Maintenance Order is granted;
medical expenses to be paid, or the child to be registered as a dependent, on a Medical Aid of one of the Parties.
arrear or backdated Child Maintenance.
General Information regarding Child Maintenance
It is essential to be aware that a parent cannot withhold child maintenance because the other Parent denies them contact with the child, becomes remarried or have other children.
Child Maintenance and contact with a child are two entirely separate matters.
If there is a change in the personal circumstances, either Parent may approach the Maintenance Court to ask for an amendment of the Child Maintenance, i.e. an increase or a decrease.
Further, Parents cannot by agreement between them change an existing Maintenance Order without the Court’s specific consent and a change in the original Maintenance Order.
If the Parents of Legal Guardians agree to what Child Maintenance is payable, their agreement can be made an Order of Court.
The duty to maintain remains until the child becomes self-supporting is adopted or die.
If the Parent passes away, the child will have a claim against that Parents estate for Child Maintenance.
Both parties must provide proof of appropriate expenditure so that the Court will be able to grant a fair Maintenance Order.
If you are not happy with a Maintenance Order, you have the right to appeal the Court order to the High Court that has jurisdiction.
Appeals are time-sensitive, and if you want to proceed with an Appeal, you need to file your Notice of Intention to Appeal within 20 days of the order being made.
Should a maintenance officer fail to track down the person against which the complaint is lodged, the Court may order cell phone service providers to hand over any information about that person. This order will only be granted if the Court is satisfied that all efforts were raised to track down the person in question;
Interim maintenance orders may be issued if an enquiry is postponed. The courts will aim to conclude maintenance enquiries as quickly as possible and with as few postponements as possible.
The Courts will aim to secure witnesses through the means of subpoenas to present factual evidence of the financial position of the person in which the complaint has been made against;
Any person who fails to notify the Court of residential and employment changes shall be found guilty and may face jail time not exceeding a year, and/or a fine;
Maintenance applications can be served via electronic email as opposed to only in person by the Sheriff of the Court, the Maintenance Investigator or the Police.
How to Apply for Child Maintenance
You can directly apply for Child Maintenance or you can get assistance from a Family Law Attorney. The process can be very confusing for people that are not use to the legal system.
Visit the Magistrate’s Court that has jurisdiction.
Obtain, complete and submit Form A: The Application for a Maintenance Order
In addition to Form A, you will also need to provide proof of your monthly income and expenditure, for example, receipts for food purchases, school uniforms, schoolbooks, pharmaceutical items, electricity and/or rent bill payments. The following events should then take place:
The Court will then set a date on which you and the Respondent (the person from whom you are claiming the maintenance) must be present.
When you have lodged your Application a Maintenance Officer and an Investigator will be appointed to examine your claim and all the circumstances thereof.
Immediately upon the Application being launched, the Court will then serve a Maintenance Subpoena on the Respondent to appear at Court on the specific date.
Upon receipt of the Summons, the Respondent then has two choices: they can either agree to pay the maintenance, or they can contest the matter in Court.
If the Respondent agrees to pay the maintenance, a Magistrate will review the relevant documentation and make an order. Both Parties don’t need to be present as such an order can be made in the absence of the Respondent.
Complaints relating to maintenance, known as Section 6.
Whenever a complaint to the effect that any person legally liable to maintain any other person fails to maintain the latter person; or that good cause exists for the substitution or discharge of a maintenance order, has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner.
The Section 6 proceedings are where the Maintenance Officer will meet with the Parties (the Applicant and the Respondent). They will then see that the ApplicationApplication is in order and see if a settlement can be reached. If a settlement is not possible, they will refer the matter for a Section 10 enquiry.
Section 10 Maintenance Enquiry: After investigating the complaint. The Maintenance Officer may institute an enquiry in the Maintenance Court within the area of jurisdiction in which the person to be maintained or the person in whose care the person to be maintained is, resides with a view to enquiring into the provision of maintenance for the person so to be maintained.
If the matter proceeds and an enquiry is held before a Magistrate, then both the Applicant and the Respondent must appear in Court, where evidence from both Parties and their witnesses if any, will be heard.
Once the Court finds the Respondent liable for maintenance, it will make an order for maintenance to be paid. Further, the Court will determine when and how the maintenance payments must be made.
The Court can order how the maintenance be paid.
What to do if a Parent or Legal Guardian fails to pay Child Maintenance?
If a person fails to pay maintenance according to a Court Order, you can, as the Applicant apply to the Maintenance Court that has jurisdiction to hear the matter for:
The Maintenance Court may authorise the issue of a Warrant of Execution against the movable property of the person against whom the maintenance or other order in question was made and if the movable property is insufficient to satisfy such order, then against the immovable property of the latter person to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon as well as the costs of the execution.
The Attachment of Emoluments (Garnishee Order) to attach any emoluments at present or in future owing or accruing to the person against whom the maintenance or other order in question was made to the amount necessary to cover the amount which the other person has failed to pay. Together with any interest thereon as well as the costs of the attachment or 55 execution, which order shall authorise any employer of the other person to make on behalf of the latter person such payments as may be specified in the order from the emoluments of the other person until such amount, interest and costs have been paid in full.
An order for the Attachment of Debt when such Court suspends the warrant of execution under section 27(4)(b), make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance or other order in question was made to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the attachment or execution, which order shall direct the person who has incurred the obligation to pay the debt to make such payment as maybe specified in that order within the time and in the manner so specified.
How to Calculate Child Maintenance
If you decide to proceed with a claim for Child Maintenance, you need to do your homework. Similarly, if you are opposing an application for an increase of Child Maintenance, you need to prepare appropriately.
Prepare a spreadsheet detailing all your income and expenses. This sheet must include all income such as your salary, bonuses and income from investments.
When you investigate your expenses, take into consideration all your expenses and not only the higher amounts as expenses add up fast.
Make sure that you also know the details of the other Party – the Respondent. The Maintenance Investigator can assist you with this process, and you can also arrange for subpoenas to be issued on people that can shed light on the Respondents income and expenses.
Once you have all this information, you will be able to determine the reasonable needs of the child, taking into consideration the standard of living. Also, be aware that if your standard of living is not as high as that of the Respondent, that you cannot insist on having an income to match their lifestyle.
Generally, the Courts will allocate one-third of the household expenses per child and two thirds per adult.
After the determination of the needs of the child, the income of the Parents is used to determine the amount of Child Maintenance that needs to be paid.
Parent’s Gross Income The Child’s Needs
_____________________________________ x __________________
The Combined Income of Both Parents 1
Child Maintenance can, as such, easily be determined if all the information is available.
We have extensive experience dealing with Child Maintenance Matters and if you need assistance with your Child Maintenance Matter, contact us!