YOUR CHILD’S RIGHT TO MAINTENANCE.

INTRODUCTION

In South Africa, both parents are legally obligated to provide financial support for 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. It is important for parents to fulfil their legal obligation to ensure that their children receive the financial support they require.

LAW ON MAINTENANCE

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. This means that if only one parent has adopted the child, the biological parent cannot be held 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, typically, one parent or the legal guardian of the child will bring forth these applications.

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, as well as paying for a proper education. The court may also order the father to contribute to the payment of laying-in expenses and maintenance from the date of the child’s birth up to the date on which the maintenance order is granted. The court may also grant an order for the payment of medical expenses or may order that the child be registered on the medical scheme of one of the parties as a dependant. To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.

One thing that must be stressed under South African Law, is that a person’s duty to pay maintenance and their right to access to their children are two entirely separate matters and the 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 as a means to extract the maintenance owed and due. This is better left for the courts to decide how such actions should take place, by 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 the child reaches a particular age, this only extinguishes once the child becomes 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.

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 any errors or omissions nor any loss or damage arising from reliance upon any information herein. Please feel free to contact Meyer and Partners Attorneys Incorporated should you require further information or specific and detailed advice. Errors and omissions excepted (E&OE)

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