Applying for Maintenance

WHAT IS MAINTENANCE?

Maintenance is the obligation to provide another person, whether it be a minor; a former spouse or a family member with the means for everyday life.

Types of maintenance:

  1. Child maintenance;
  2. Spousal maintenance;
  3. Cross border maintenance.

WHO MUST APPLY FOR MAINTENANCE

  1. The parent/person who is in custody of the child/ren may claim maintenance from the other parent/ who is responsible or liable to pay maintenance.
  2. Or in the instance where one spouse would like to apply for support from the other, where applicable.

WHO MUST PROVIDE MAINTENANCE?

The duty to maintain or pay maintenance is based on blood relations, adoption or the fact that the parties are married to each other.

Procedure:

A. Application

Go to your nearest Magistrate Court with the following documents:

  1. Proof of birth certificate for the child(ren)

2. Your identity document

3. Divorce order and/or settlement if any

4. Proof of applicant’s income and expenditure

5. Name and surname of parent/person responsible for the payment of maintenance money

6. Physical/work address of the parent/person responsible for the payment of maintenance money if available

7. Copy of bank statement

8. Proof of residence/affidavit. The maintenance clerk will then assist you in completing the forms.

The Maintenance Clerk will refer your application to the Maintenance Officer for final assessment of your documents. After assessment the registration of application and reference number will be issued.

Fill in a Maintenance Claim Form that sets out your personal details and the details of your assets, income and expenditure.

– Take the Maintenance Claim Form, together with any documents proving your income and expenditure, to your nearest Magistrates Court.  Each Magistrates’ Court has staff (called Maintenance Officers) who are especially employed to guide you through the maintenance process. Just give the Maintenance Officer your completed Maintenance Claim Form and he/she will then guide you through the rest of the process.

How is the amount of maintenance calculated?

The Maintenance Officer at Magistrates’ Court will have a look at your Maintenance Claim Form and will then help you work out how much money you should claim as maintenance. The Maintenance Court will consider your claim and will then determine the exact amount of the maintenance that must be paid. Usually, the Court begins by working out how much the children or wife need for their maintenance (ie. for food, shelter, clothes, education etc.). The Court then looks at the financial situation of each parent and makes an order that ensures that each parent makes a fair contribution to the needs of the children, taking into account the parent’s ability to pay. This usually means that each parent will be required to contribute in proportion to their respective incomes. One parent (e.g. the ex-husband) may also be ordered to contribute to the other’s living expenses (e.g. the ex-wife).

What expenses may be claimed?

You can claim an amount of money that is reasonably necessary to support yourself and/or your children and to provide a proper standard of 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 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 dependent. The order granted by the Court can also require a parent to contribute to the past costs of maintaining a child.

To enable the Court to grant a fair maintenance order, both parties must provide the Court with a full picture of their finances and proof of their expenses.

Issuing a directive

The Maintenance Officer will issue a directive calling upon the parties to meet, for the purposes of conducting an investigation into the alleged complaint. The Maintenance Officer will then conduct an investigation into the alleged complaint, or conduct mediation with both parties present.

Mediation and granting of an order by consent

The Maintenance Officer will conduct mediation with both parties to reach an agreement/settlement.

Where the parties reach an agreement/settlement, the agreement will be made an order of the court. The Maintenance Officer may request both parties to sign a written consent and have that made an order of the court. The court then makes an order for payment of maintenance in accordance with the agreement between the two parties.

Where parties do not reach an agreement, the matter is then referred to court for formal enquiry.

Court date

On the day of the court appearance, an enquiry will be held to determine the needs of the applicant and the means available to provide maintenance from both parties. After consideration, the Magistrate will make a maintenance order indicating the amount to be paid.

Payment method

The court may order the respondent to make payments by means of:

  1. An electronic funds transfer (EFT) to the beneficiaries bank Account
  2. A deduct ion of the maintenance money from the respondent’s salary (Garnishee order)
  3. Direct deposit to the beneficiaries bank account.

What will a court take into account when making a maintenance order?

When a court makes an order in respect of the maintenance of a child, it will take into account:

the reasonable maintenance needs of the child;

that both parents jointly have a duty to support the child; and

that the parents’ respective shares of their obligation are apportioned between them according to their means or ability.

Can the maintenance amount be reduced?

The respondent can apply to the courts for a reduction, but this will be subject to a financial investigation to determine if the applicant really can no longer afford to pay the amount in terms of the order. The other party’s circumstances, which may have changed, will be taken into account.

What if the respondent is unemployed?

If the respondent is unemployed, the magistrate will postpone the enquiry, allowing the respondent to look for work. He/she will need to get employers to sign a form proving that work was sought.

If the respondent is unemployed but has hire-purchase agreements, the magistrate may order that the furniture be attached and sold to pay maintenance. It is up to the complainant to inform the maintenance officer if they know about any such agreements.

If the respondent is unemployed, one may get a child-support grant from the Department of Social Development to help support the child.

Can one appeal against a maintenance order?

If a party is aggrieved about an order that was made by the maintenance court or about the court’s failure to make an order, he/she can appeal the decision to the High Court in the province where the order was made. A notice of the intention 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 made the order then has 14 days in which to give a statement to the clerk of the maintenance court, setting out his/her reasons for the order.

If the applicant cannot afford legal representation, they must inform the clerk of the maintenance court who will approach the Director of Public Prosecutions with a copy of the relevant documentation. The Director of Public Prosecutions will then decide whether to assist in the appeal.

It is important to note that any appeal in terms of the Maintenance Act does not suspend the payment of maintenance in accordance with the current maintenance order, unless the appeal is made against the finding that the applicant is legally liable to pay maintenance. If a court changes the original order at appeal, it will stipulate that the revised maintenance, if any, only be paid from the date of the order of appeal.

An appeal cannot be noted against an order that was made by consent;

A provisional order relating to the costs of scientific tests regarding paternity; and

An order by default.