CLAIMING CHILD MAINTENANCE OR CHILD SUPPORT

Claiming Child Maintenance or Child Support – your right to have legal representation

By law a child is entitled to reasonable maintenance for essential needs such as food, clothing, housing, education and medical care. Section 28 of the Bill of Rights in the South African Constitution guarantees these fundamental rights for each child.

Every parent bears an obligation in law to provide for the needs of the child according to their means. This is their legal duty in law to maintain their child.

Child maintenance is also known as child support and the basic principles are the same the world over. The calculation of the requisite maintenance is a relatively simple exercise.

Maintenance Court

Every Magistrate’s Court in South Africa also has a Maintenance Court, which deals specifically with all maintenance issues. The High Courts also deal with maintenance matters in limited circumstances.

It is imperative that when filing a maintenance application in the maintenance court, that you come to terms with the fact that it is a process which will endure for approximately three to four months for elementary cases with appearances typically once a month.

Engaging the services of an experienced attorney will stand you in good stead and enable you to obtain the best result in the process. Experience cannot be gained without legal knowledge and actual court appearances in the process itself as there are very specific nuances for each legal claim filed in the courts.

There are different applications that can be dealt with in the Maintenance Court and different processes are applicable to each one.

These applications are typically:

  • the applications for maintenance for a child(ren),
  • applications for increases in maintenance already ordered previously,
  • applications for variations pertaining to such orders and applications for reduction of such orders,
  • applications pertaining to recovery of arrear maintenance,
  • applications for attachment orders.

Each application has its own unique requirements which must be fulfilled.

If an applicant is not satisfied with the outcome of any application, the applicant may appeal the case to the High Court.

A maintenance court order stays in effect or operation until the child reaches the age of 18 years.

Applications for Child Maintenance or Child Support

If you are a single parent, and the child’s other parent does not pay maintenance support in respect of the child or children and there is no court order, the first step is to go the maintenance court to start the process by completing the statutory “Application for Maintenance Order” which is a prescribed document obtained from the maintenance court.

Particular information must be furnished in order that the application can be processed by the maintenance court officers.

Once you have completed the form, you will then make a declaration under oath and sign the form in front of a Commissioner of Oaths.

You are required to provide a copy of the child(ren) birth certificate(s), together with a copy of your identity document, information pertaining to the expenses for the child(ren), proof of your salary or income and FICA documentation.

You have the right to legal representation at any stage during the process.

Do not be overwhelmed by the process or accept terms which you do not believe are in the best interests of your child(ren).

If you encounter difficulties with the maintenance officers, you are entitled to request a meeting with the Senior Magistrate of the Court.

Once your application is processed, you will receive a copy of same and an original subpoena and copy thereof for service by the Sheriff of the Court on the other parent.

The Sheriff will serve the maintenance court documents on the other parent and on your court return date the maintenance court process will proceed to run in accordance with its standard procedures.

It is important to stay the course of the process to obtain the maintenance court order in the best interests of your child(ren). Be patient and resolute.

If you are in the process of divorce, it is absolutely necessary to ensure that in your divorce agreement or court order that maintenance for your child(ren) is provided for so that the maintenance is determined in the divorce proceedings to save you considerable time and effort in applying for maintenance subsequently.

Do not accept token or trivial maintenance amounts for your child(ren) as the expenses and costs for children are significant and increase year on year.

www.slamatlaw.co.za