Your childs right to maintenance.

by | Oct 9, 2023 | Family Law | 0 comments

What is maintenance, and how does it work?

In South Africa, parents are legally obligated to financially support their children through child maintenance. This responsibility is shared equally between the parents, and each has the right to claim on behalf of their children if the other parent falls behind in their obligations. Parents must fulfil their legal obligation to ensure their children receive the financial support they require.

The law.

In South Africa, child maintenance is governed by various acts, including the Divorce Act No. 70 of 1979, the Children’s Act No. 38 of 2005, and the Maintenance Act No. 99 of 1998.

It is important to note that Child Maintenance laws ensure that every child has the right to receive financial support from their parents, regardless of whether they were born within or outside of marriage. Additionally, adopted children have the same entitlement to maintenance from their adoptive parents but cannot receive it from their biological parents unless they still live with them. If only one parent has adopted the child, the biological parent cannot be responsible for maintenance payments.
 
Under South African Law, a person can apply for maintenance against the party who has failed to provide it at any Maintenance Court located within the district where the Complainant or child resides. Since children lack the necessary locus standi, one parent or the child’s legal guardian typically will bring forth these applications.

The nature of maintenance.

A party claiming maintenance may claim reasonable support necessary for providing the child or other person with a right to maintenance with a proper living and upbringing. This includes providing necessities such as food, clothing and housing, and paying for a proper education. The court may also order the father to contribute to paying laying-in expenses and maintenance from the date of the child’s birth until the maintenance order is granted. The court may also grant an order to pay medical expenses or that the child be registered on the medical scheme of one of the parties as a dependant. Both parties must provide proof of their expenses to enable the court to grant a fair maintenance order.

One thing that must be stressed under South African Law is that a person’s duty to pay maintenance and their right to access their children are two separate matters, and one does not go hand in hand with the other. This means that even if one parent fails to provide maintenance, the other parent may not withhold the children from that parent to extract the owed and due maintenance. This is better left for the courts to decide how such actions should take place, by the way, for example, either imprisonment or by way of a garnishee order on the defaulting parent’s salary.

A parent’s duty to support their child does not end when they reach a particular age; it only extinguishes once they become self-supporting. This is generally accepted to mean when a child starts to work; however, this is not exhaustive, as the child could still need support despite their working status if they are mentally or physically challenged.

If you would like to access resources on the procedures for maintenance in South Africa please click here.

If you would like to read more about how to apply for maintenance please click here.

If you would like to know more about parental rights and responsibilities click here.

If you would like to know more about maintenance without an attorney click here.

If you would like to know more about adoption laws in SA click here.

If you would like to know more about the legal implications of divorce click here.

If you would like to know more about parental leave click here.

If you would like to know more about spousal maintenance click here.

If you would like to know more about applying for guardianship click here.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for errors, omissions, loss, or damage arising from reliance upon any information herein. Don’t hesitate to contact Meyer and Partners Attorneys Incorporated if you require further information or specific and detailed advice. Errors and omissions excepted (E&OE

Meyer and Partners Attorneys have offices in Centurion and can assist with your Family Law, Civil Law, Contractual and Labour-related matters.