The Duty to Maintain
The duty of maintenance, i.e. providing someone, (Minor Children), with housing, clothing, food, medical care and education, or other necessary fundamentals of life is an obligation which is a legal duty – also known as 'the duty to maintain’.
Who Must Do the Maintaining?
It’s a responsibility that falls on the shoulder of a relative, either through blood or adoption, or marriage.
Minor Children should be maintained by:
• their parents, either married, living together, separated, divorced, genetic or adoptive; and/or, sometimes –
• their grandparents, irrespective of whether or not the Minor Children’s parents were married to each other.
There are three conditions involved in the claiming of support:
• the duty to support must be established
• the people on whose behalf the support is being claimed are unable to maintain themselves
• the person from whom maintenance is claimed is able to afford the maintenance that is claimed.
How much Maintenance?
What constitutes reasonable support when assessing the upbringing of Minor Children? When making this assessment it should be taken into consideration that the basic necessities include food, clothing and housing, as well as payment for a proper education.
Orders made by the Court could include an order for:
• contribution from the father towards payment of laying-in expenses and maintenance from the date of the child's birth up to the date upon which the maintenance order is granted;
• medical expenses to be paid, or the child to be registered as a dependant, on a medical aid of one of the Parties.
Both Parties must provide proof of appropriate expenditure so that the Court will be able to grant a fair Maintenance Order.
You May not Withhold Payment
When an Order of Maintenance is made by the Court it is binding. This means that you may not withhold the payment of maintenance if the other parent:
• becomes remarried;
• becomes involved in another relationship;
• prevents you from seeing the Minor Children; or
• has more Minor Children at a later stage.
Please bear in mind that:
• maintenance and Contact (Access) are two entirely separate matters;
• the actual amount of maintenance can be amended by the Court if either Party brings an application
To Apply for Maintenance
Visit the Magistrate’s Court that has jurisdiction over your particular residential area
Obtain, complete and submit Form A: The Application for a maintenance order
In addition to Form A, you will also need to submit proof of your monthly income and expenditure, for example receipts for food purchases, school uniforms, school books, pharmaceutical items, electricity and/or rent bill payments. The following events should then take place:
• The Court will then set a date on which you and the Respondent (the person from whom you are claiming the maintenance) must be present;
• When you have lodged your application a Maintenance Officer and an Investigator will be appointed to examine your claim and all the circumstances thereof;
• Immediately upon the Application being launched, the Court will then serve a Maintenance Subpoena on the Respondent to appear at Court on the specific date;
• Upon receipt of the Summons, the Respondent then has two choices: they can either agree to pay the maintenance, or they can contest the matter in Court;
• If the Respondent agrees to pay the maintenance, a Magistrate will review the relevant documentation and make an order. It is not necessary for both Parties to be present as such an order can be made in the absence of the Respondent;
• If the Respondent decides not to consent to the issue of such an order, then both the Plaintiff and the Respondent must appear in Court, where evidence from both Parties and their witnesses if any, will be heard;
• Once the Court finds the Respondent liable for maintenance, it will make an order for the amount of maintenance to be paid. Further, the Court will determine when and how the maintenance payments must be made;
• The Court can order that the maintenance money 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.
To Apply to change the amount
If the person who receives the maintenance finds it to be insufficient, they can request that the amount of maintenance paid to be increased.
If the person who is paying the maintenance finds that through changed circumstances, they can no longer afford to pay, they also can request to have the amount of maintenance decreased.
How To Do It
The person who receives the maintenance:
• Must apply at the Magistrate's Court that is situated in the area where the person who pays the maintenance lives;
• Must complete the correct application form and submit it to the Maintenance Officer with a list of their income and expenses;
The person who pays the maintenance but cannot afford the amount:
• Must apply at the Magistrate's Office in the area where the recipient of the maintenance lives, and request that the order to be amended to a lesser amount;
• Must complete the correct application form and submit it to the Maintenance Officer;
• Must take a list of the income and expenses and submit it to the Maintenance Officer with a written explanation stating the reasons for the application.
After that, the same process as when a claim for maintenance is first instituted will then be followed.
If Your Spouse Fails to Pay
Failure to pay maintenance according to the divorce order means that the following can happen:
Lodge a Complaint – Maintenance Court
An enquiry in the Maintenance Court area in which your spouse resides could be instituted by the Maintenance Officer who is appointed to investigate your complaint;
The Maintenance Officer will require your spouse to appear before a Magistrate;
The Court, after considering the evidence, could grant a garnishee order requiring your spouse's employer to deduct the maintenance amount from his salary – depending upon the Court’s findings.
If the Maintenance Order was granted by the Maintenance Court
You can claim against his property, goods, emoluments (any monies that may be due to him) or any debts that are due to him;
This must be authorised by the Maintenance Court who will issue of a warrant of execution to attach goods, emoluments or debts;
When applying for the authorisation for a Warrant of Execution, such application must be submitted together with a copy of the Maintenance Order and a statement under oath and bearing the amount to be paid by the person against whom the Order was made. All these forms are available at the Maintenance Court.
If the Maintenance Order was granted Post Divorce
Make an application to the High Court that issued the decree requesting that it issues a Warrant of Execution against your spouse: Maintenance Court may also issue the Writ. You will need your Attorney to help you in this regard.
Request your Attorney to obtain a garnishee order against your spouse's salary if he is employed.
A spouse who does not make a payment in accordance with a Court or Maintenance Order is guilty of an offence. It means that they are liable on conviction to a fine or imprisonment, or to imprisonment without a fine. This is dependent upon their ability to prove that their failure to pay the maintenance was through lack of funds;
You can lay a criminal charge against your spouse if he fails to adhere to the terms of the Decree of Divorce or any Order made by a Maintenance Court;
Although your spouse could then be arrested this does not automatically mean that you will receive payment of the defaulted maintenance;
However, if your spouse is arrested and immediately pays all the arrear, it is quite probable that the State will drop the charges.
Instruct Your Attorney
All of the foregoing is best left to the Professionals because if you make a slip it delays and confuses the whole process and you might have to begin again; so rather instruct your Attorney or find a firm of Specialist Divorce and Family Law Attorneys such as ourselves to handle these delicate matters on your behalf.