Every child is entitled to receive maintenance for their basic needs such as food, clothing, housing, education and health care.
There are many myths about child maintenance. For example, many people believe that parents must support their children only until they reach the age of 18. In truth, the parents' duty to support their children continues until their child is self-supporting.
The biological parent of a minor child (whether the father or mother) can claim maintenance from the other parent of the child. A parent of an adopted child can claim maintenance from the other adoptive parent.
A major child (over eighteen) can claim maintenance directly from his/her parent(s), without the assistance of a parent.
The amount of maintenance that parties pay depends on two factors:
Firstly, the parents must calculate the amount required per month to support the children. The calculation includes items such as food, clothing, school fees and medical aid. This calculation must consider the family's standard of living.
The parents must disclose their income and expenses. The parent with the higher net income will have to pay mostof the maintenance. In most cases, both parents will have to contribute towards the maintenance of the minor children. So, for example, if the father earns twice what the mother does, he will have to pay two-thirds of the maintenance, and she will have to contribute one-third of the maintenance.
Of course, a court cannot order a parent to pay maintenance he/she cannot afford. If a parent cannot afford to pay maintenance, the court will order him/her to pay a lesser amount. If a parent has no income at all, he/she will not be required to pay maintenance, unless he/she owns significant assets which he/she can use to pay maintenance.
Claiming maintenance on behalf of a minor child is often a long and gruelling process. The process may start with negotiations between the parents without outside assistance. However, often, the parties will need to use a mediator, and/or attorneys, and may ultimately land up in court. Let us look at the process in more detail.
A parent claiming child maintenance may first try to negotiate with the other parent. However, direct negotiations between the parties are rarely successful. Usually, there is simply too much hostility between them. It may be counterproductive for parties with a high level of conflict to attempt direct negotiations. So, unless parties have a particularly cordial relationship, they should seek the assistance of an attorney or mediator at the outset.
One way that parties may be able to settle their maintenance dispute is through mediation. The role of the mediator is to help the parties reach an agreement. A mediator is not a judge or an arbitrator. He does not make decisions for the parties.
Many attorneys also practice as mediators. Mediation has become increasingly popular. The law now requires that the parties attempt mediation before proceeding to court.
Several organisations provide mediation free of charge, or at a reduced cost. Two such organisations are "Pro Bono" and "Family Life Centre".
If parties are unable to settle their dispute by mediation, they will have to engage with attorneys. Once appointed, the attorneys on either side will attempt to negotiate a settlement. Since the attorneys know the law and are not emotionally involved with the case, they are often able to settle the case. However, this may take several months or even years.
If the attorneys' attempt to settle the case ultimately proves fruitless, the party claiming child maintenance will have no option but to go to court.
Fortunately, there is a special court for maintenance cases, with a relatively simple procedure and short duration. Due to the simple process, a party need not necessarily make use of attorneys (an enormous saving on legal fees).
If the Defendant fails or refuses to pay maintenance, you must report him to the Maintenance Officer. The court will order one or more of the following:
We can help you claim for child maintenance to ensure that your children are cared for. Contact us for assistance.
Disclaimer: The content of this article was correct at the time of publishing, but the legislation or underlying information forming the basis of this article may have changed. You should always speak to a qualified Legal&Tax advisor before making any decisions.