So my friend has been struggling with maintenance for he daughter and I thought to myself how little we know about family law. So here's a few facts:
MAINTENANCE - FAQ
(NB: for ease of reference the person claiming maintenance is the “plaintiff” and the person against whom maintenance may be claimed is called the “defendant”. Maintenance Officer is “MO”.)
INTRODUCTION Maintenance matters are heard in Maintenance Courts, presided over by a maintenance officer. Maintenance courts are located at every magistrate's courts. They may be approached when maintenance is sought from a person who is legally liable towards a minor child
(Form A) must be completed, or for the discharge or substitution of existing maintenance orders.
(Form B) must be completed.
The Maintenace Officer may make a maintenance order compelling the defendant to pay maintenance in a particular form and manner. He may also order the defendant to pay arrears from date of birth as well as costs of birth.
The Maintenace Officer may make specific orders such as compelling the defendant to add his child as a dependent on his medical aid scheme.
He may also attach annuities, provident funds and similar for maintenance, but this is restricted to cases where defendant has acted in bad faith. He may also order an emolument attachment order.
When variation of existing order is sought, the defendant must show “good cause” - basically changed circumstances of the minor child, or the parents, that would justify a higher or lower amount.
THE HEARING
Defendant does not arrive
Should Defendant not arrive but has consented in writing to the judgement (Form G) an order may be made. An order may be made against an absent Defendant if he consents in writing to judgement.
Should defendant fail to attend, and he does not consent to judgement in writing and Maintenace Officer is satisfied that he had knowledge of the proceedings, he may allow plaintiff to adduce evidence and make an order as he sees fit, including default judgement.
It should be noted that failure to attend where he does not consent to default judgement is a criminal offence.
Steps defendant may take: If default judgment is obtained, the defendant may apply to court for rescission or variation of judgment. (Form I) must be completed and Application must be made within 20 days of defendant becoming aware of judgement or later on good cause shown.
PATERNITY
If paternity is disputed, the court may order a paternity test. If paternity is disputed and both parties agree to a test, but cannot afford it, the court has discretion to order state to pay part or all of the cost of the test.
APPEALS
Either party may appeal against an order of the maintenance court. However, the lodging of an appeal does not suspend payment of maintenance and that whoever lodges will have to bear the cost. As appeals are made to the High Court this can be very expensive.
One cannot appeal against judgement by consent or default judgements.
An appeal must be lodged within 20 days, setting out what is being appealed and the grounds of appeal.
ENFORCEMENT OF MAINTENACE ORDERS
Maintenance Orders can be enforced through attachment of property, emoluments attachment order or the attachment of any debt.
Interest is payable on arrear maintenance.
Action may be taken once at least 10 days have passed after due date of maintenance payment.
To authorise above remedies plaintiff must complete (Form K), attach a copy of maintenance order and accompanied by a statement under oath (Form Q) stating that defendant has failed to meet his maintenance obligations.
If a defendant wishes to set aside an attachment order he must complete (Form M). If he can satisfy court at an enquiry that he has met his obligations, the attachment order will be rescinded.
Court will consider his ability to pay, provided it is not self-created, such as avoiding maintenance by not working, the needs of the child, and defendants conduct to date as well as any other relevant factors.
A warrant of execution may be suspended and replaced with an emolument attachment order is granted, the employer will become liable for maintenance and non-payment of maintenance would then be pursued against the employer for as long as defendant is in his employ.
Such an order may be rescinded, amended on good cause. Application for rescission, amendment or suspension is made after giving notice to other party on (Form N).
A warrant of execution may be suspended and replaced with an attachment of debt owing to the defendant.
(Form P) must be completed for rescission, amendment or suspension of such an order.
PENALTIES
A claim of inability to pay will not succeed if due to defendant's unwillingness to work.
Failure to pay maintenance is a criminal offence which carries the possibility of a year in prison with or without the possibility of a fine.
The defaulters details may also be referred to credit bureaux.
WHERE DEFENDANT IS RESIDENT IN FOREIGN STATE
If one of the parties is in a foreign state, refer to act 80 of 1963
Getting a Maintenance Order:
Steps to Follow:
* Apply for maintenance at the magistrate's court in the district where you live.
* If you are in doubt, your local court will tell you at which court to apply for maintenance.
* Go to the relevant court and complete and submit Form A: "Application for a maintenance order."
* In addition to the completed form, submit proof of your monthly income and expenses, such as receipts for food purchases, electricity and/or rent bill payments.
* The court will serve a summons (a letter instructing a person to come to court) on the respondent (the person against whom the claim is brought ) to appear in court on a specific date to discuss the matter.
* The respondent agrees to pay the maintenance as claimed, a magistrate will review the relevant documentation. He or she will then make an order, and may decide to do so without requiring the parties to appear in court.
* If the person who is allegedly liable to pay maintenance does not consent to the issuance of an order, he or she must appear in court, where evidence from both parties and their witnesses will be heard.
* If the court finds the person liable for paying maintenance, payments must be made.
* The court can order maintenance money to be paid in one of the following ways:
+ At the local magistrate's office or any other government office designated for this purpose.
+ Into the bank or building society account designated by the person concerned.
+ Directly to the person who is entitled to the money.
+ By means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee's salary, in accordance with the new Maintenance Act, 1998.
For more information contact the maintenance officer at your local Magistrates' Court.
Source: Department of Justice & Constitutional Development.
Unmarried? Know your rights
It’s important to know where you and your baby’s father stand with SA’s Children’s Act, especially if you’re not married. You both have certain rights and obligations, and familiarising yourself with the basics could save you a great deal of trouble
On 1 July 2007, the new Children’s Act No. 38 of 2005 came into effect.
The point of the new Children’s Act is to improve and define the rights of children in line with our country’s Constitution. Part of what this legislation aims to do, is to define parental responsibilities and rights.
When the legislation was being drafted, experts used as their framework something called “The Best Interests of the Child Standard.” This means that in all matters concerning the care, protection and wellbeing of a child, the child’s best interests is of paramount importance – more so than the rights of the parent.
In a nutshell
- A child, male or female, becomes a major upon reaching 18.
- The biological mother of a child has full parental responsibility of the child, whether she’s married or unmarried.
- The biological father of a child has full parental responsibility of the child if he’s married to the child’s mother or if he was married to the child’s mother at the time of the child’s conception, birth or any time between the child’s conception and birth.
- An unmarried biological father may ask a court of law to grant him full parental responsibilities if he:
- at the time of the child’s birth, is living with the mother in a permanent life partnership, or
- consents to be identified as the child’s father, or
- successfully applies to be identified as the child’s father, or
- pays damages in terms of Customary Law, or
- contributes or has tried to contribute to the child’s maintenance and upbringing for a reasonable period.
What does this mean?
It doesn’t matter whether the parents are married and they conceive a child, or, whether they marry after conception and before the birth of a child: they’re both equally responsible for that child. Nothing has changed as regards the law concerning minor children.
Full parental responsibilities and rights
In legal terms, what does the phrase “full parental responsibilities and rights” actually mean and include?
- The responsibility and right to care for the child;
- To maintain contact with the child;
- To act as guardian of the child;
- To contribute to the maintenance of the child.
Fathers have more rights now
There are various other matters which a parent or guardian would have to administer, safeguard and consent to for the child.
Under the old dispensation, where parties were divorced, one parent (usually the mother) would usually be awarded custody of a minor child and the other parent (usually the father) would be entitled to visitation rights.
The custodian parent would be vested with making all of the day-to-day decisions of the minor child including which school the child would attend, what religion the child would practice, where the child would reside and so on.
This is now no longer the case.
The parents now have joint parental responsibilities and rights, and all major decisions relating to the minor child need to be taken by the parties jointly, which is a far healthier situation for the child.
And if my child is illegitimate?
When a child’s parents are not married, the mother remains the primary caregiver of the child and the father can apply for rights if he complies with one of the requirements mentioned above. Again, the natural father of a child born of unmarried parents still has to pay maintenance for a child under 18 years if age, whether he wants to or not.
What if the father won’t pay?
Importantly, the biological father is responsible for the payment of maintenance for the child, regardless of whether he chooses to apply for parental responsibility or not. If there is a dispute between the child’s parents about maintenance, the matter has to be dealt with by a family attorney, social worker, social services professional or other suitably qualified person.
This applies regardless of whether the child was born before or after the commencement of the new Act.
Some women find themselves in situations where they are involved in relationships, fall pregnant out of wedlock and then discover that their partners want nothing to do with them. They choose to have the child, and their partners attempt to avoid responsibility.
In situations like these, the mother is entitled to approach the maintenance court for the area she lives in to claim maintenance from the father of the child. The court will make an order for an appropriate amount. There are people at the court to assist the mother in completing the necessary documentation and serving the papers on the father to appear at court.
Once an order has been made for the payment of such maintenance, and the father fails to pay the maintenance, he could be sent to prison for failing to do so. When the father of an illegitimate or even a legitimate child is unable to pay maintenance for a child, the court may look to the grandparents of the minor child on the father’s side, to decide whether they are capable of paying maintenance for that child.
So let’s say there’s a situation where, for example, the father of a minor child is killed in an accident, and there are paternal grandparents who are financially able, the mother could ask the court to get the grandparents to give a good reason why they should not be ordered to pay maintenance for the minor child.
Do you have a cohabitation contract?
It is extremely important for women to know their rights. Not just in relation to children, but in relation to their rights generally.
For example, did you know that in South Africa there is no law governing cohabitation relationships? Therefore, in a situation where a couple who may have lived together for many years, when that relationship ends, there are no “common-law husband or wife” rights, as such.
Even if you lived in your boyfriend’s house for 15 years, and have several children together, if that relationship suddenly ends, you might find yourself without a home, unless there’s a contract in place.
You can approach any legal aid clinic or lawyer to help you draw up a simple document that gives you the same rights as a married woman, even if you’re not married. Do it for your peace of mind, and your children’s security.
Adam and Steve?
In South Africa, recently, in terms of the Civil Union Act which became effective on 1 December 2006, same-sex marriages are legally recognised. The laws that apply to children in heterosexual marriages also apply to children in same-sex marriages.
In a recent decision in South African courts, the Department of Home Affairs was ordered to register both parents in a same-sex marriage as the parents of a minor child, to enable a divorce to proceed and to ensure that the parental responsibilities and rights could be properly regulated.
Whose surname does the baby get?
If a child is born out of wedlock, the child will take the mother’s surname, unless the father of the child consents to having his surname being registered on the birth certificate.
If the parties are living together in a marriage-like relationship, then the parents may wish for the child to have the father’s surname.
However, if there is no such relationship then it would make sense for the child to have the mother’s surname to avoid confusion. It’s an entirely personal decision. If you gave your child the father’s surname, then later came to regret it and wished to change the child’s surname, you need the father’s permission, or the Department of Home Affairs will refuse.
You need permission to go overseas with the kids
When a child born in wedlock is taken out of the country, in the company of only one parent, it is necessary to have the written consent of the parent who stays behind. This becomes especially important in divorce cases, where the spouse who remains behind in South Africa may be concerned that the spouse who is travelling might be trying to kidnap the child.
If the child is born out of wedlock it depends on whether or not the father of the child has parental responsibilities and rights and, if so, then his written consent will also be required.
A will is extremely important
If you have children, the issues in a will which need to be dealt with are:
- Who should be their guardians?
- Who will be responsible for their education?
- Who will be responsible for managing your financial affairs?
- It is important to decide who to appoint as Trustees.
- It is important to appoint as your Executor and Trustees people whom you know personally and not, for example, huge financial institutions.
- If you die without a Will, then your Estate will be wound up as an intestate Estate and a person whom you do not know may be appointed to manage your affairs.
Outdated terminology
Courts used to use words like “custody” and “access” when they referred to children’s rights. The terms which are now used are “care” and “contact.”
A parent is now no longer a “custodian” but may provide the “primary place of residence” for a minor child, and have the “care” of the child.
Free legal resources
Whether you want to draw up a cohabitation contract or a will, want to know what your rights as a father are, or need help to receive maintenance from your children's biological father, you don't need to hire an expensive legal adviser. Contact any of these free organisations:
Women’s Legal Centre:
www.wlce.co.za (021) 4211 380
Family Law Clinic:
www.familylawclinic.org.za
Legal Aid:
www.legal-aid.co.za
Lawyers for Human Rights:
www.lhr.org.za
Legal Aid Clinics, nationwide:
- University of Cape Town: (021) 650 3551
- University of Durban-Westville: (031) 204 4445/4821
- University of Fort Hare: (04060) 22236
- University of the Orange Free State: (051) 401 2451
- University of Natal (Durban): (031) 260 2867
- University of Natal (Pietermaritzburg): (033) 260 5778
- University of the North: (015) 268 2903
- University of the North West: (018) 389 2510
- University of Port Elizabeth: (041) 504 2190
- Potchefstroom University: (018) 299 1950
- University of Pretoria: (012) 420 4158
- Rand Afrikaans University: (011) 489 2141
- Rhodes University: (046) 603 8427
- University of South Africa: (012) 429 8439
- University of Stellenbosch: (021) 808 3195/2
- University of Venda: (015) 962 8217
- Vista University (Bloemfontein Campus): (051) 505 1386
- University of the Western Cape: (021) 959 2756; www.communitylawcentre.org.za
- University of the Witwatersrand: (011) 717 8562
- University of Zululand: (035) 902-6192 or 793 3911
