Maintenance is a crucial aspect of family law in South Africa, ensuring that individuals, particularly minors, receive the necessary support for their well-being.
This article provides a comprehensive guide on maintenance orders in South Africa, detailing the legal obligations, who is responsible, what can be claimed, the application process, and what happens if maintenance is not paid.
What is Maintenance?
Maintenance refers to the obligation to provide another person, such as a minor, with essentials like housing, food, clothing, education, and medical care. This legal duty is known as the “duty to maintain” or “duty to support.”
Who Must Provide Maintenance?
The duty to maintain is primarily based on blood relationship, adoption, or marriage. A child must be supported by:
- Parents: Regardless of their marital status (married, living together, separated, or divorced), including adoptive parents.
- Grandparents: If the parents are unable to provide support, grandparents may be responsible, depending on the case specifics.
The duty to support extends beyond children. Any family member, regardless of age, can request maintenance if they are unable to support themselves, provided the family member from whom maintenance is claimed can afford it.
What Expenses Can Be Claimed?
You can claim reasonable support necessary for providing a proper living and upbringing, which includes:
- Food
- Clothing
- Housing
- Education
- Medical expenses
The court may also order the payment of laying-in expenses from the child’s birth until the maintenance order is granted and can require one parent to add the child to their medical scheme as a dependent.
Applying for Maintenance
Steps to Follow:
- Apply at the Magistrate’s Court: Visit the magistrate’s court in your district.
- Complete and Submit Forms: Fill out and submit J101, Form A: Application for a Maintenance Order, along with proof of income and expenses.
- Investigation: A maintenance officer and investigator will assess your claim and circumstances.
- Court Appearance: The respondent will be summoned to court. They can either agree to pay or contest the claim.
- Court Order: If the respondent agrees, the magistrate will issue an order. If contested, a hearing will be held, and the court will determine the maintenance amount.
Payment Methods
Maintenance payments can be made through:
- Local magistrate’s office
- Designated bank or building society account
- Directly to the entitled person
- Employer deductions (in line with the Maintenance Act, 1998)
Changing the Maintenance Amount
Increase or Decrease Requests:
- For Increase: Apply at the magistrate’s court in your district with a statement of income and expenditure.
- For Decrease: Apply at the magistrate’s office where the original order was made, with the necessary financial documents.
What Happens If Maintenance Is Not Paid?
Failure to comply with a maintenance order can lead to:
- Contempt of court proceedings
- Civil and criminal proceedings
- Salary, bank account, or asset attachment
- Arrest warrants
Child Maintenance Act and Legal Framework
The Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005 govern maintenance in South Africa. These laws ensure that both parents contribute to their child’s upbringing based on their earnings and the child’s needs.
Conclusion
Understanding maintenance orders in South Africa is crucial for ensuring the well-being of dependents.
If you need assistance with maintenance claims or related legal matters, please feel free to contact us to guide you through the process and protect your rights and responsibilities.