DIVORCE & MEDIATION

FAMILY LAW MEDIATION

CHILD MAINTENANCE

DOMESTIC VIOLENCE

CHILDREN'S COURT

LEGAL DOCUMENTS

GENERAL LITIGATION

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Maintenance for minor children

 

What is meant by maintenance?

Each parent has the obligation to support their children according to their financial means. The needs of the child / children have to be established eg. roof over their head, food, schooling, medical costs, etc. The children’s needs must be to the standard of living the children are used to if the parents can afford it. The obligation does not solely fall upon the father but a shared responsibility between both parents/parties. Even if the father can fully support the child, this does not mean that the mother is excused from such responsibility. Both parents must use their income and capital to support their child/children. If a father/mother has no current income but has movable assets, he/she will be unable to avoid paying maintenance. The court may order that assets be sold in order to pay for child maintenance to satisfy the obligation to pay maintenance. This prevents either parent from avoiding the duty of paying maintenance. Example: giving up work to become a full-time student.

 

Which factors will influence the amount of maintenance?

 

Many factors will be taken into account such as:

  • The reasonable monthly needs of the child.
  • The monthly income and expenses of both parents. The assets of the parents should also be considered should they not have an income or be unemployed.
  • What can each parent reasonably contribute towards the monthly expenses of the child?
  • The parent with whom the children spend most of their time,
  • The standard of living
  • The children’s ages would also play a role in the maintenance amount.

 

These factors will affect what is considered to be a reasonable maintenance amount per child. If the parties / parents cannot agree on a reasonable monthly maintenance amount per child, the presiding Judge / Magistrate will have to consider the above-mentioned factors to make a reasonable order.

 

If my financial circumstances change after divorce, would it be possible to change the maintenance amount?

Indeed, the children’s maintenance as stipulated in the divorce order can always be changed post divorce. To change said amount contact your attorney or your nearest Magistrate’s Court’s clerk or maintenance officer for assistance. They will help guide you through the process. It is not compulsory to have an attorney with you – however having one ensures the process is finalized and followed through faster than sitting in long queues and waiting your turn (yes, the attorneys are helped first) Please note: You will have to provide proof of your changed financial circumstances.

 

Can I go to any magistrate court in RSA to lodge maintenance?

Yes, you can go to any local magistrate court where you and/or the child reside. If the ex-spouse that needs to contribute towards maintenance lives in another province, it means that he / she needs to make arrangements to attend the court where the child lives.

 

What should I do if my ex-spouse does not pay maintenance after divorce?

Firstly, you will have to provide evidence that the maintenance is outstanding by submitting your bank statements, etc. Also have your divorce order handy as well as the settlement agreement or parenting plan that was made an order of court. Secondly, proceed to contact your attorney or your nearest Magistrate’s Court’s clerk or maintenance officer for guidance and information on other related information that you may need. It is not compulsory to have an attorney for this however, once again, this process can be extremely time-consuming compared to that of those who do use an attorney for this process.

 

After divorce, may my ex-spouse be denied contact with the children if he/she does not pay maintenance?

Contact with children and paying maintenance are two completely separate instances. One party should not deny the other contact with the children if he/she does not pay maintenance. To enforce a maintenance agreement/obligation as set out in the divorce order, the correct process must be followed. Contact your attorney or your nearest maintenance officer to gain insight into the steps you should take to retrieve maintenance. Refusal of contact with the parent and child does not entitle them to stop paying maintenance.

 

When does maintenance stop?

Maintenance will be stopped or relinquished once the child/children reach the age of maturity (18 years old) but the child/children may institute action himself/herself. A court may stipulate specific provisions in a court order if the child/children are in temporary custody of one parent and that parent is not entitled to reduce/suspend his/her maintenance during such a period. Maintenance may very well also include tertiary education during which time there will still be a duty to support the child during their studies.

 

Can my ex-spouse be locked up for not paying maintenance?

If the ex-spouse fails to pay within the specified times, you should report the matter to the Maintenance Offices. The court will follow one of the following two options: either a civil case for enforcement of maintenance, where the Magistrate makes an order to deduct it from his / her salary or issue an order that goods or furniture be sold to pay for the maintenance or criminal prosecution. A warrant of arrest can be issued if the respondent failed to comply with an order of court.

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