Is there something you’re burning to ask, but don’t know how? There are loads of Frequently Asked Questions, SHOULD Ask Questions and Myths around Maintenance, Parenting Plans & access/visitation.
Have a look at the list below, if you don’t find what you are looking for, don’t worry! Join the Facebook group and you will receive all of the answers!
What are the 3 types of maintenance?
- Child maintenance
- Spousal maintenance
- Cross border maintenance
Who should pay maintenance?
It is a legal obligation of both the biological parents, grandparents or legal guardian of the child to pay maintenance.
Who can apply for Maintenance?
- The parent/person who is in custody of the child/ren may claim maintenance from the other parent who is responsible or liable to pay maintenance
- Or in an instance where one spouse would like to apply for support from the other where applicable.
- Maintenance can be claimed from the biological grandparent if the parents cannot pay maintenance.
What are the documents needed to lodge a maintenance claim?
- The Identity document, birth certificate of the child, bank statements of both the parents, list of the expenses of the child, list of expenses of both the parents, Proof of applicant’s income and expenditure, Name and surname of parent/person responsible for the payment of maintenance money, Physical/work address of the parent/person responsible for the payment of maintenance money if available, Copy of bank statement, Proof of residence/affidavit,
- The maintenance clerk will then assist you in completing the forms.
- The Maintenance Clerk will refer your application to the Maintenance Officer for ﬁnal assessment of your documents.
- After assessment the registration of application and reference number will be issued.
Issuing a directive
- The Maintenance Officer will issue a directive calling upon the parties to meet, for the purposes of conducting an investigation into the alleged complaint. The Maintenance Officer will then conduct an investigation into the alleged complaint, or conduct mediation with both parties present.
Mediation and granting of an order by consent
- The Maintenance Officer will conduct mediation with both parties to reach an agreement/settlement
- Where the parties reach an agreement/settlement, the agreement will be made an order of the court. The Maintenance Officer may request both parties to sign a written consent and have that made an order of the court.
- The court then makes an order for payment of maintenance in accordance with the agreement between the two parties.
- Where parties do not reach an agreement, the matter is then referred to court for formal enquiry.
- On the day of the court appearance, an enquiry will be held to determine the needs of the applicant and the means available to provide maintenance from both parties.
- After consideration, the Magistrate will make a maintenance order indicating the amount to be paid.
- An electronic funds transfer (EFT) to the beneﬁciaries bank account.
- A deduct of the maintenance money from the respondents’ salary, (Garnishee order)
- Direct deposit to the beneficiaries bank account
Can I claim maintenance from grandparents?
Yes, maintenance can be claimed from the biological grandparent if the parents cannot pay maintenance.
Is it compulsory to pay maintenance?
Yes, it is compulsory to pay maintenance.
Where are you supposed to lodge a complaint for maintenance?
In any local magistrate court where the applicant and/or the child resides.
How much money should be paid for maintenance?
The amount payable for maintenance will be determined by the needs of the child and the financial means of the parents.
At what age should you stop paying maintenance?
The maintenance should be paid until the child is self-supporting.
What happens if the child reaches the age of 18 and she/he is still not self- supporting?
The payment of maintenance will continue until the child is self-supporting. However, the payer needs to apply for a substitution in order to pay directly over to the 18 year old. and if in arrears the 18 year old needs to approach the court for arrears application.
What happens when the person responsible for paying child maintenance dies?
The maintenance money should be paid out from the deceased estate for future maintenance.
Can I increase/decrease the maintenance amount after the order has been granted?
Yes, you can request decrease/increase of the amounts, especially if the financial circumstances have changed.
Can I claim maintenance while living together with the father/mother of the child?
Yes, you can claim maintenance if the other parent does not take responsibility of maintaining the child..
What is the procedure in cases where a respondent does not pay
- Civil Enforcement of Maintenance, through the Magistrate may order one of the following: Emolument attachment, attachment of debt and/or, execution of movable/immovable property.
- Criminal Prosecution. A warrant of arrest can be issued as the respondent failed to comply with an order of court.
What is a parenting plan?
The Children’s Act offers parenting plans as a method to assist parents with how to exercise their parental responsibilities and rights after separation or divorce. Parenting plans are a relatively new concept in South Africa, but are already popular in countries such as the United States and Australia, and in certain European countries. A parenting plan sets out how parents will exercise their respective responsibilities and rights. It must comply with the best interests of the child principle as set out in the Act, and must be in terms of a prescribed form and include the following issues:
- where and with whom the child is to live;
- the maintenance of the child;
- contact between the child and any other person; and
- the schooling and religious upbringing of the child.
Where do I get a parenting plan?
First port of call would be through an accredited mediator. Alternatively you need to apply for one at the Family Advocate. If mediation at the FA fails, the file will be transferred to the Children’s Court. All parenting plans as part of divorce decrees need to be accepted by the FA before the divorce is granted.
Can only the primary care-giver apply for a Parenting Plan?
No. Both parents may approach the court and apply if they feel that one parent is not acting in the best interests of the child, or to just have their agreement made a court order.
What do I do if one parent is not complying to the Parenting Plan?
If the parenting plan has been made an order of the court, either parent may approach the court. If a parent is not allowing the child to see their other parent during stated times laid out in a parenting plan that is made an order of court, the SAPS may get involved and ensure that contact times are adhered to.
What if I would like to make changes?
Again, try mediation first. If the other parent refuses mediation, or mediation fails, then approach the children’s court for an amended parenting plan.
If they don't pay, they have no rights to visitation.
No. maintenance and contact are two separate cases. Your child has the right to a relationship with both parents, regardless of maintenance being paid or not.
Maintenance is always 50/50.
This is untrue. Maintenance is calculated according the individual needs of the child, as well as the means of both parents/legal guardians.
The court will count the step-parent's income when applying for maintenance.
No. A step-parent has no legal obligation towards their spouse’s children unless heshe has legally adopted them.