CHILD SUPPORT: HOW THE COURTS CAN HELP

When parents’ divorce, they are both responsible for providing for their child or children’s needs. So what happens when one does not play their part? Here’s how the courts can help.

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Children deserve the continual love, support and commitment of both parents, whether or not they stay together. But all too often, after the relationship ends one parent (usually the father) fails to honour their commitment.

When Paballo Maleka’s* 11-year marriage ended, she struggled to get financial assistance for their children aged nine, six and four. With a long list of needs for her three growing children, Paballo (36) was barely making ends meet on her nurse’s salary. ‘I would ask their father for money for school fees, clothing and food,’ she says, ‘but to no avail.’

After two years of her ex-husband’s empty promises and faced with a pile of debt, she did her homework and decided to approach the Pretoria magistrate’s court. ‘The clerk advised me on the documentation I needed to bring with me to make an application for maintenance,’ says Paballo, ‘and I went back a few days later.’ In a couple of weeks, the court ordered her ex to contribute towards their children’s school fees, transport, medical aid, food and clothing.

Sadly, Paballo’s story is not unique; many single mothers struggle to get the fathers of their children to shoulder some of the responsibilities associated with raising their children.

“It is the responsibility of parents to ensure that those basic needs are met”

DUTY TO MAINTAIN
According to a 2017 General Household Survey report by Statistics SA, 62,7% of South African households have absent fathers. This is why so many single mothers turn to the courts in a bid to compel the fathers of their children to pay child support. Section 18 of the Children’s Act 38 of 2005 states that the ‘parental responsibilities and rights in respect of a child include the responsibility and the right to contribute to the maintenance of the child’.

‘Relationships often break down, but how one parent feels about the other should not have any bearing on the child’s right to maintenance,’ says Johannesburg-based legal advisor Tebogo Mahlatsi.

Maintenance should be paid even if the other parent remarries or has other children. Mahlatsi says both parents are legally bound to maintain the child or children and provide for their needs. This responsibility falls on biological parents but also, in some cases, grandparents and legal guardians.

‘Children should have access to education, a home, clothing, medical care and food,’ she says. ‘It is the responsibility of parents to ensure that those basic needs are met. It is known as the duty to maintain.’



MAINTENANCE ORDERS
The primary caregiver can approach a maintenance office in the district in which they live. At the maintenance office you will receive an Application for Maintenance Order form. The form must be submitted to the maintenance clerk together with supporting documents. The clerk then sends the application to the maintenance office for review, and provides a reference number. Following this, a summons with a date to appear in court will be served on the respondent (the party who should be paying maintenance).

If the whereabouts of the respondent are unknown, the court’s maintenance investigators can assist in tracing them. On the court day, the magistrate will review the application and determine the financial capabilities of both parents and then make an order. The respondent can either agree to the maintenance order or contest it. Should they challenge it due to financial circumstances, they must give evidence to support this. If the respondent claims they are not the parent of the child, or they are not sure it’s their child, the court will order a paternity test.

WHAT IF THEY DON’T PAY?
Unfortunately, not all respondents honour the court order. ‘It’s a criminal offence not to pay,’ says Mahlatsi. ‘Should the respondent default on payments, the primary caregiver has every right to lay a complaint at the maintenance office. This might result in a garnishee order being issued, which means the court orders the respondent’s employer to take the money owed for maintenance directly from their wages, so it can be paid to the primary caregiver.

The court will give the defaulting parent the chance to explain why they haven’t made payments. However, according to the Maintenance Amendment Act (Act No 9 of 2015), without a good reason, the court can order the parent to either pay the outstanding maintenance, have interest added to it, have their property or other assets attached, blacklist them or even sentence them to jail.

AFTER THE AGE OF 18?
A parent’s responsibility and right to apply for maintenance stops when the child reaches the age of 18. However, parents’ responsibility to maintain the child continues. Lungile Dube* (40) learnt this in 2017. Her daughter, Buhle, had completed matric and was admitted to North-West University to study psychology. ‘Because she was 18, her father stopped making payments,’ says Lungile. ‘I still needed to support her but he refused to pay anymore.’

Legally, Buhle was deemed old enough to bring an application for maintenance herself, which she did. Now 20 years old, she receives financial support from both her parents. Her study fees are paid to the university and the rest of the money is paid directly to her account, instead of into her mother’s bank account.

THINGS CAN CHANGE
The amount of maintenance that has to be paid can be increased or decreased should any of the parties’ financial circumstances change. The court can be approached again for the matter to be reconsidered.

*Names have been changed

IMPORTANT DOCUMENTS TO TAKE WITH YOU WHEN MAKING AN APPLICATION FOR MAINTENANCE
• Your ID
• Divorce settlement if divorced
• Proof of residence
• Child’s birth certificate
• Payslip
• 3-months’ bank statements
• Proof of your expenses such as rent, school fees, transport, groceries, medical bills, etc
• Details of the other parent – full name, ID, contact number, home address and work address

By KOKETSO MASHIKA

JET CLUB HELPLINES
For free advice on a maintenance dispute, Jet Club members can call our Legal Assist careline

Legal Assist:
SA & Namibia
0800 00 45 45
Botswana, Lesotho & Swaziland
+2711 991 8258