When it comes to children’s rights, the law can serve as their strongest guardian. In fact, according to the law, parents have a duty to support their children until the children can support themselves.
This includes providing for their children’s needs such as food, clothes, rent, school fees and medical aid.
While the parents are married or living together, the issue of making sure their children needs are fulfilled does not usually arise.
However, when parents divorce or separate, the question of which parent will support the children and how much money they will provide, does become an issue that needs to be formally decided upon
Maintenance refers to the amount of money that a court rules a parent must provide for their child under certain circumstances.
A biological parent can claim maintenance from the other parent. They are able to make this legal claim, whether they are or are not married, living together, separated, or divorced. Indeed, even a parent of adopted children can also claim maintenance from the other adoptive parent.
A grown up child can also claim maintenance from their parents. Contrary to popular belief, a child over 18 years old can claim maintenance from their parents. The parents are obliged to pay maintenance until the child is self-supporting.
The court or another professional person will help with working out how much money is needed to take care of the child.
The amount of money given as maintenance will be decided according to the three following factors:
1. REASONABLE NEEDS OF THE CHILD
The cost of the child’s needs such as food, clothes, school fees and medical aid will be calculated. The usual standard of living in the family will also be considered.
2. THE INCOME AND EXPENSES OF EACH PARENT
Once the amount of maintenance has been calculated, the court or the professional involved will compare the income and expenses of each parent. The parent with the bigger net income will be required to pay most of the maintenance.
3. IF THE PARENT CAN’T AFFORD TO PAY
A parent cannot be ordered to pay maintenance he or she cannot afford. If the parent cannot afford the maintenance, they will be required to pay a lesser amount. Their financial position may improve in a few months or yearly so an order not to pay isn’t permanent.
A parent who has no income at all, will not be required to pay maintenance. However, if they own significant assets or possessions, which can be used to pay maintenance, they will be expected to do so.
The best way to try and reach an agreement on maintenance would be to negotiate with the other parent.
Usually the parent who earns more, would be expected to pay more towards their child’s maintenance.
Once you have both agreed on an amount, you should put this agreement in writing.
However, if it is not possible to reach an agreement between the two of you, you can ask for a professional mediator to get involved. The mediator will help you to work together to find a suitable arrangement. The mediator is not like a judge or arbitrator; they will not force a decision on you but rather will help you communicate effectively with the other parent in order to reach an agreement.
Many attorneys also practice as mediators. There also some organisations that provide mediation at a greatly reduced cost.
Two such organisations are:
Johannesburg +27 (11) 339 6080
Durban +27 (31) 301 6178
Cape Town 087 806 6070/1/2
Family life Centre
Johannesburg +27 (11) 788 4784
COURT OF LAW
However, if you are experiencing real problems with organising maintenance, there is a special Maintenance Court where you can get help.
This court has a fairly simple process and neither you or the other parent will need an attorney.
This is how the court process works:
On this court date, both parents will provide all the relevant information needed, before the Magistrate. Each parent has to prove what their income and expenses are, as well as what the children’s financial needs are. The court does not need to know how your relationship broke down, nor whose fault it was.
It is simply there to make sure your child’s rights are protected and that they are given the maintenance they need.
The court will decide if a parent needs to pay maintenance, and if so, how much this should be.
If the parent refuses or fails to pay maintenance, you must report them to the Maintenance Officer at the same court that heard the matter .
The court will then order one of the following:
South African law allows its citizens to claim maintenance from a parent living in a foreign country.
South Africa has reached an agreement with a number of countries, whereby the foreign country will recognise and enforce a court order for a maintenance payment. Here is a list that shows which countries are recognised by our government:
Australia, Canada, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey (Bailiwick of Hong Kong), Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, United States of America, Zambia and Zimbabwe.
Unfortunately, not all countries have joined our agreement. If your ex-partner lives in one of these excluded countries, although it can be a very long and difficult process, you do still have a chance to approach the court of that country to see if they can maybe help you.
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