Maintenance for Children and Spouses

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Maintenance, both for children and spouses, is a crucial aspect of family law. It’s important to understand that these obligations are not gender-specific, and both parents and ex-spouses can have financial responsibilities toward their children and former partners. Here are some key points regarding maintenance:

Child Maintenance:

The obligation for child maintenance doesn’t rest solely on the father but extends to both parents, depending on their respective means and income.

It is not valid to insert a clause in a divorce settlement agreement stating that only one parent is responsible for maintaining the child.

Child maintenance typically continues until the child reaches the age of 18. After this age, a child must initiate an action for maintenance in their personal capacity.

Temporary visits by a child to one parent do not entitle that parent to suspend or reduce maintenance payments, unless a court order explicitly permits this.

Step-Parents and Remarriage:

A step-parent is not obligated to support a stepchild. Similarly, a child from a first marriage does not have priority over a child from a second marriage in terms of maintenance obligations. Refusing a parent contact with the child does not entitle the paying parent to cease making maintenance payments.

Changing Circumstances:

Maintenance orders are not fixed indefinitely. If circumstances change, either parent can apply for an increase or reduction in maintenance.

Both parents must use their incomes and, if necessary, their capital to fulfill their obligation to support their child. If one parent has no income but owns assets, these assets may be ordered to be sold to cover the maintenance obligation.

Spousal Maintenance:

While both men and women are entitled to seek spousal maintenance, women often seek maintenance in practice. Spousal maintenance isn’t automatically granted in divorce cases. The law generally favors the “clean break” principle, promoting economic independence for both parties as soon as possible. The court, however, has discretion to award spousal maintenance when necessary.

Duty of Support:

During a marriage, each spouse owes the other a reciprocal duty of support, depending on the actual need of one spouse and the ability of the other to provide support. This support encompasses basic necessities like accommodation, clothing, food, and medical services.

The duty of support ends upon the termination of the marriage, whether through divorce or death. In divorce cases, the Divorce Act allows for court orders regarding spousal maintenance. In case of a spouse’s death, the surviving spouse can claim maintenance from the deceased spouse’s estate, as per the Maintenance of Surviving Spouses Act.

Spousal Maintenance is Discretionary:

Spousal maintenance is not an automatic right. It’s a discretionary power of the court, and the court may choose not to award maintenance.

The court considers factors like the financial independence of both spouses and the clean break principle when deciding on spousal maintenance.

Understanding these principles is essential in family law, as they determine the financial responsibilities and rights of parents and former spouses.

Maintenance Pending Divorce:

When a divorce is taking a significant amount of time to finalize, or when one of the spouses is without income (e.g., a homemaker), the law provides for a mechanism known as “interim relief” to assist during the interim period. This is governed by Rule 43 of the High Court and Rule 58 of the magistrate‚Äôs court. Interim relief helps to provide financial support for spouses while the divorce is ongoing.

Maintenance of Children:

To apply for a maintenance order in the maintenance court, follow these steps:

  • Step 1: Gather Information

    Compile a list of your monthly expenses and collect evidence of your income and expenses. Gather documents such as doctors’ bills, school-related receipts, rent and utility bills, grocery and clothing receipts, transportation expenses, payslips (if employed), ID documents, children’s birth certificates, school attendance letters, divorce orders (if applicable), and information about the respondent (e.g., ID, address, photograph).
  • Step 2: The Application

    Visit your local magistrate’s or family court with your documentation. You’ll need to fill out a maintenance application form (e.g., J107E or J101E), which can be obtained from the court clerk. The clerk can assist you in filling out the form. Ensure that you provide supporting documents for all income and expenses listed on the form. Clearly state why the person you’re claiming maintenance from is legally obligated to support the child.
  • Step 3: The Investigation

    After filing the complaint, a maintenance officer, often a public prosecutor, will conduct an investigation. The maintenance officer can issue a subpoena to the respondent and witnesses. A maintenance investigator may be tasked with finding the respondent and gathering information. The maintenance officer will decide whether to hold an informal or formal enquiry.
  • Step 4: The Informal Enquiry

    During the informal enquiry, the maintenance officer mediates between you and the respondent to try to reach a settlement. The respondent provides financial information and documents. If an agreement is reached, the respondent signs a form, which becomes an order of court. If no agreement is reached, the matter proceeds to a formal enquiry.
  • Step 5: The Formal Enquiry

    The formal enquiry takes place before a magistrate in a maintenance court, following civil court procedures. Both parties can be legally represented, but at their own expense. The magistrate considers all relevant information to determine the amount of maintenance. Witnesses may be called upon as needed. The respondent must provide evidence for why they should not pay maintenance. Presence at the Maintenance

Enquiry:

The person seeking maintenance, the person responsible for paying maintenance, and the maintenance officer must be present. Witnesses may be subpoenaed to provide evidence. Nobody else can be present unless authorized by the court. Non-Appearance of the

Respondent:

If the respondent does not appear, a default order may be issued if the court is satisfied that the respondent was aware of the subpoena. The complainant may apply to change or set aside a default order. The respondent can apply to set aside a default order within 20 days of receiving it, with the possibility of an extension if there is a valid reason.

Notice of the application to set aside a default order must be given to the complainant at least 14 days before the application is heard, and the magistrate will make a decision after considering the evidence. This process helps ensure that maintenance obligations are met, and the rights of children and those seeking maintenance are protected.

Maintenance Order:

After considering the evidence, the court can make various decisions, depending on the circumstances:

New Maintenance Order: If there is no existing maintenance order, the court may issue a maintenance order. This order specifies the amount of maintenance to be paid and may also include directions regarding when and where the payments should be made. The court can order that maintenance be paid on a weekly or monthly basis, either at the maintenance court for collection by the complainant or into an account at a financial institution via stop order or another method. The court may also order that a child be placed as a dependant on the respondent’s medical scheme if applicable. If the mother was pregnant, the court may order the respondent to back-pay expenses related to the child’s birth and maintenance from the date of birth to the date of the enquiry, including interest.

Substitute or Discharge: If there is an existing maintenance order, the court may choose to substitute it with a new order, discharge the existing order, or make no order at all.

Consent Maintenance Orders:

Parties may agree to a maintenance order, often during the informal enquiry, with or without the involvement of the maintenance officer. The respondent must provide written consent, and a copy must be given to the maintenance officer. The respondent doesn’t need to be present during the enquiry, but they must acknowledge receipt of the order in writing. Failure to comply with the consent order may lead to legal consequences.

Reducing the Maintenance Amount:

The respondent can apply to the court for a reduction in the maintenance amount, but this is subject to a financial investigation to determine whether the applicant genuinely cannot afford to pay the ordered amount. Changes in the circumstances of both parties will be taken into account.

Unemployed Respondent:

If the respondent is unemployed, the magistrate may postpone the enquiry to allow the respondent time to seek employment. The respondent may be required to provide evidence, such as forms signed by potential employers, demonstrating efforts to find work. In cases where the respondent is unemployed but has hire-purchase agreements, the court may order that the furniture be attached and sold to pay maintenance. This can be triggered if the complainant is aware of such agreements. In cases of unemployment, the child-support grant from the Department of Social Development can help support the child.

Appealing a Maintenance Order:

If a party is dissatisfied with a maintenance order made by the maintenance court or believes the court has failed to make an order, they can appeal the decision to the High Court in the province where the order was made. The notice of intent to appeal must be given to the clerk of the maintenance court and delivered to the other party within 20 days of the order being made. The magistrate who issued the order must provide reasons for the order within 14 days. If the appellant cannot afford legal representation, they can seek assistance from the Director of Public Prosecutions for the appeal.

Non-payment of Maintenance:

Failure to comply with a maintenance order is a criminal offense. If the respondent does not pay maintenance, the complainant can apply to the maintenance court for authorization to issue a warrant of execution, attachment of emoluments (garnishee order), or attachment of debt. These actions help enforce the maintenance order. The respondent may be fined, imprisoned, or both for not paying maintenance, and may be blacklisted by the maintenance officer. To avoid punishment, the respondent must prove to the court’s satisfaction that they could not pay due to a lack of money or income.

Warrant of Execution:

A warrant of execution is a method for enforcing judgments, allowing a court sheriff to seize goods and sell them to satisfy a debt. The warrant can be issued against the respondent’s movable property and, if insufficient, against their immovable property. Suspension or Amendment of

Warrant of Execution:

The respondent can apply to the maintenance court to have a warrant of execution set aside or suspended. This application must be made at least 14 days before the hearing. The court may call for oral or written evidence during the hearing. If a warrant is suspended, an order for attachment of emoluments or debt may be granted.

Garnishee Order (Attachment of Emoluments):

This order allows deductions from the respondent’s salary or monetary compensation, sometimes as a result of a court order. The court may issue a garnishee order if the respondent fails to pay maintenance, or when a warrant of execution is suspended. The respondent’s employer is notified to deduct and pay the specified amount to the complainant. Failure by the employer to comply can result in enforcement against the employer.

Attachment of Debt:

The court may also issue an attachment of debt order, compelling the debtor who owes money to the respondent to pay it directly to the complainant. This can be done when the respondent does not pay maintenance, or when a warrant of execution is suspended.

Attachment of Pension Benefits:

Under certain circumstances, it is possible to attach the respondent’s pension benefits to secure payment for maintenance. However, there are prohibitions set out in the Pension Funds Act that must be considered.

Foreign Maintenance Orders:

South African law allows citizens to claim maintenance from a parent living in a foreign country. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 regulates this process and is applicable to countries that have reciprocal enforcement agreements with South Africa. Proclaimed countries with such agreements include Australia, Canada, the United Kingdom, the United States of America, and others. Maintenance orders granted in one country can be enforced in another under these agreements.

Complaints:

Complaints against court officials, including police officers, maintenance officers, attorneys, magistrates, and sheriffs, can indeed be made if you believe they have not fulfilled their duties or have mistreated you in some way. Here is a brief summary of where and how you can report such complaints:

Police Officers: If a police officer authorized to enforce a warrant of execution or arrest fails to do so, you can report them to the station commissioner at the local police station.

Maintenance Officers: If a maintenance officer fails in their duties or treats you poorly, you can report them to the court manager or the senior prosecutor at the court where they work, or at the Directorate of Public Prosecutions in your province.

Attorneys: If you believe an attorney involved in your case has acted improperly, you can report them to the Law Society in the province where they practice.

Magistrates: To report a magistrate, you can request to speak to the chief magistrate at the court where the issue occurred. You can also inform the maintenance officer about your concerns.

Sheriffs: If a sheriff fails to execute a warrant properly, you can report them to the South African Board for Sheriffs. They should carry valid ID cards issued by the board, which they must produce if asked.

Complaints against these officials are essential to ensuring accountability and maintaining the integrity of the legal system. When making a complaint, it’s helpful to provide as many details as possible about the incident or issue and any relevant documentation or evidence. This will assist the relevant authorities in conducting an investigation if necessary.

Areas of experties

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Our family law litigation department is one of our flagship divisions, with immeasurable experience when dealing with both family and matrimonial matters. However, our skills are not limited thereto. We are well equipped to act on behalf of our client and parties in the relevant proceedings in an amicable manner.