The Maintenance Act sets out what the courts can do.
People can either use the attorney or the Maintenance Prosecutor would largely depend on what the person earns and what a person can afford.
A maintenance claim is where you wish to receive money from the other parent of your child in order to help pay the child’s upbringing. If you cannot reach a private agreement with the other parent/guardian of the child, then you may wish to bring the case for the Maintenance court to decide.
What can a person claim for?
When applying for a maintenance order, a person can claim for a;
• periodical payments order; (usually monthly payments of a fixed amount);
• lump sum order; (a one-off payment);
• transfer of property order; and/or
• maintenance pending suit order; (for maintenance while the proceedings are still on-going);
Law and maintenance
The law provides that you have to support your children according to their needs and your means. By ‘means’ it refers to the income and assets and by ‘needs’, it means the reasonable expenses of the child. What is reasonable for one child may not be for another, and it is obviously dependent on the background of the parents and the upbringing of the child.
What if a person cannot afford the attorney?
If you don’t have the money to afford an attorney you can always go to your local maintenance court and get the help of the court officials. Those who can afford it, it is obviously better to consult with a private practitioner who can spend more time going into the matter in greater detail. However, if you can’t afford that, you do always have access to the maintenance court and the services supplied to you, by the State, free of charge.
How much is enough maintenance and how calculate it?
Every situation is different, if your background is dictated, and the income is high, then you are certainly looking at higher maintenance than somebody who is involved with, for example, an unemployed person.
Maintenance cannot be measured in monetary terms alone. Usually, the parent who cares for the child on a daily basis indirectly contributes towards maintenance because of the time they spend together. Nevertheless this, both parents still have a financial obligation to pay maintenance in accordance with their means, income and expenditures. Maintenance may need to be adjusted regularly, depending on the changing needs of the child or the financial position of the parents. Once the need for a change in maintenance arises, whether filing a new application or seeking to vary an existing court order/settlement agreement, the applicant can request that the maintenance court:
• 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 of the parents can apply to the Magistrate’s Court where the children reside for a variation of the current maintenance order, but only if circumstances change. Examples will be if the father for instance, loses his job or remarries; and, in the mother’s case, where a child may need special care (occupational therapy). It was decided in previous cases that where a father remarries and then has to support a “second” family, this financial obligation shouldn’t impact negatively on his “first” family. A father may not raise a defence that the needs of his second wife is a reason to reduce maintenance in respect of the children of his first wife.
When does the obligation to pay maintenance for children end?
In terms of our law, a child becomes an adult at the age of 18. A lot of people believe that in fact that is when an obligation for maintenance ends. The Maintenance Act itself does not comment on the duration of this responsibility to support a child.
For more information, please visit http://www.divorcelaw.co.za