Child Maintenance - Seven Basic Points to Remember

Our social@legalhero.co.za mailbox has been flooded with child maintenance questions. We have compiled a short information piece to shed light on the many uncertainties surrounding this topic.

Please note that this piece is compiled from the viewpoint of our many female Women’s Month readers. It is, however, not uncommon for fathers to be the principal caretaker of the child/ children these days and to apply for child maintenance against the mother.

1. Both parents need to contribute financially based on what each parent earns and can afford. If the father earns more and has more resources available to him, he may be ordered to pay more than the mother. Even where the mother is in a good financial position and able to take care of the child on her own, this does not exempt the father. The court can order him to pay something based on what he can afford;

2. The court will consider the following before making an order: the best interests of the child is always paramount. They will also consider circumstances, the reasons provided by both parents during the maintenance hearing, both parents’ salary slips, last three months’ bank statements, slips proving previous contribution towards the child’s expenses, the needs of the child, if the child has become accustomed to a certain living standard before the parents’ split or not and furthermore ask each parent to complete an income and expenditure list;

3. Sometimes the father will dispute paternity and this will delay proceedings. The court or the father may send a referring letter requesting a paternity test. A DNA test costs in the region of R2 000 and it is usually the man (he who denies paternity) who pays. If the man refuses to undergo a paternity test (one does have the constitutional right to bodily integrity), the court must warn him of the impact his refusal might have on the court’s decision. There is a presumption in our law that he who had intercourse with the mother at a time at which the child could have been conceived, is considered to be the father of the child unless there is evidence proving otherwise;

4. If the father is unable to support his children, the mother can institute maintenance proceedings against his parents (the grandparents). The following must be shown in order to succeed: a) the grandparents are in a position to support the child and b) the child’s maintenance requirement;

5. In some instances, parents need to contribute financially even after the child turns 18. This is where the child remains dependent (full time student or unemployed). The maintenance application must be brought in the adult child’s personal capacity. In other words, it is he/ she who needs to complete the maintenance application forms – no longer the mother or father claiming maintenance from the other parent;

6. The father cannot discontinue maintenance payments due to the mother denying him visitation rights. Visitation (contact) and maintenance are two separate parental responsibilities and rights and the one does not necessarily influence the other;

7. How to apply…

a)      For a Maintenance Order where there is no court order in place: collect as much information as possible as referred to in point 2 above. Visit the Maintenance Division of the Magistrate’s Court and complete Form A [J101] - Application for Maintenance Order. You may ask the Clerk of the Court for assistance. Claiming maintenance is free and no legal representation is necessary. If you are a Legal Hero Policyholder, you may contact your hero for assistance with the application. Note that legal representation may be arranged in the instance where the other party is represented.

b)      When you want to change the current Maintenance Order you need to complete a Form I [J256] - Application for Variation/Setting Aside of an Order. Circumstances change. An example is when the child suddenly falls ill and it leads to greater expenses. In such an instance, the mother can apply for an increase in the maintenance amount paid by the father. Remember copies of doctors’ bills, etc. as proof.

c)       For the enforcement of an existing Maintenance Order you need to go back to the Maintenance Division together with the existing Maintenance Order and proof of non- payment. Complete Form K [J306] - Application for Enforcement of Maintenance or other Order. The court may then order a garnishee against the father’s salary or the execution (selling) of his assets.

Have a blessed weekend, 

Legal Hero 

www.legalhero.co.za 

Five Unexpected Hangouts of the Law at Your Family Home

Remember to set the table for one extra (sometimes uninvited) guest that hangs out at your family home. Yes, it is important to have a basic understanding of the law, as it is with us wherever we go. Let’s have a look at a few Family, Civil, Criminal and Labour Law examples at home to put things into perspective.

1.       The irritating neighbours. Your neighbour has the right to the use and enjoyment of his/ her property. This, however, does not mean he can start a band and cause widespread upset by his 2am practise sessions. Neighbour law is based on reasonableness and tries to find a balance between opposing property rights. Your neighbour may therefore only use and enjoy his property to the extent that it does not infringe YOUR right to use and enjoy YOUR property. Remember that one cannot be oversensitive and all factors are taken into account when you apply for an interdict against your neighbour. An interdict can force someone to do something, prohibit someone from doing something or force someone to continue doing something.

2.       That new faulty washing machine. The Consumer Protection Act awards goods an implied warranty of 6 months. According to section 56 of the Act, a Consumer may ask for a repair/ replacement or refund at no cost to the consumer should a defect occur within the first 6 months. Where to complain: contact your hero or contact complaints@thencc.org.za.

3.       School fees. Previously schools could only sue the custodian parent (parent with whom the child stays) for arrear school fees. Only after the Supreme Court of Appeal ruling in Fish Hoek Primary School v GW 2010, can the other biological parent be held liable for arrear school fees. How to claim an increase in child maintenance: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms. 

4.       Aging parents. It is true that an aging parent can claim maintenance from his/ her independent children. The parents would have to prove their expenses, that they are unable to support themselves and that the child is in a position to support his/her parent. How to claim: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms.

5.       Domestic workers. A Domestic Worker MUST be provided with an employment contract and a pay slip. The employer must safe keep pay slips for THREE years. Impermissible deductions from your Domestic Worker’s pay include damages caused by ironing, meals provided during working time and crockery/ electrical appliances breakages. Noncompliance: the Department of Labour can send an Investigating Officer to your home and you may receive a fine. The matter could proceed to the Labour Court.

If you have any questions on one of the above, please send an email to freeadvice@legalhero.co.za.

Yours faithfully,

Legal Hero 

www.legalhero.co.za

Paternity Testing and the Presumption

www.legalhero.co.za