As the age old saying goes “Ignorance of the law is not an excuse”. The position under South African law is clear – both parents have a duty to maintain their children according to their respective means, until such a time that the children become self-supporting. The fact that a parent is not in contact with the child or that the child has attained the age of majority, currently 18 years of age, is irrelevant.
Who is obligated to pay maintenance?
Both parents are obligated to support and maintain their child, however, should either the mother or father fail to pay maintenance for the child, the primary care giver may lodge a maintenance application against the child’s grandparents. The duty to support the child may pass to the child’s siblings where a child is truly in need, should neither the parents nor grandparents be able to support the child, and should the relevant sibling or siblings be in a position to do so.
The maintenance legislation and its implications:
The Maintenance Amendment Act, No. 9 of 2015, has put in place several remedies and mechanisms to deal with parties who fail to comply with their maintenance duties. An example of this is that should a maintenance officer be unable to track down the person against whom a complaint is lodged, the court may grant an order for mobile network service providers to hand over any information they have on that person if the court is satisfied that all efforts were made to track down the person in question. In addition, maintenance applications may now also be served via electronic mail as opposed to the previous requirement of only allowing in person service.
Available remedies if a party ordered to pay maintenance fails to pay:
A person who fails to pay maintenance as stipulated in a maintenance order can be held criminally liable and ordered to pay a fine and/or may face imprisonment. It is therefore advisable that should you be unable to afford the ordered amount, that you apply for a reduction of the order through the proper legal channels. The success of such application is subject to a financial investigation to determine affordability.
If a maintenance order remains unsatisfied for more than 10 days, an application can be made to the maintenance court for a warrant of execution, an order for the attachment of debt, or a garnishee/emoluments attachment order ordering the employer of the defaulting party to make deductions from their salary in settlement of the maintenance debt owed. The defaulter’s personal information can also be handed over to credit bureaus which will prevent the defaulter from being granted any further credit during the period in which maintenance is owed.
The only defence available to a defaulting party when failing to adhere to their maintenance obligations, is to provide objective proof of their inability to meet their maintenance obligations as a result of financial shortcomings.
If the other party owing maintenance is unemployed, the magistrate will in all likelihood postpone the enquiry to allow them time to look for work. Once gainful employment has been obtained, the matter will be re-enrolled and a maintenance order granted.
Right to appeal a maintenance order granted:
There is no right of appeal a maintenance order which was granted by default, or in circumstances where an order was granted by consent between the parties. Additionally, it is also not possible to appeal a provisional order relating to the costs of paternity testing.
However, a right of appeal does exist with regard to any other maintenance issues not mentioned above, provided that the notice of intention to appeal is filed with the clerk of the maintenance court in the province where the order was issued and delivered to the other party within 20 days of the original order being made. Unfortunately (or fortunately) the appeal does not suspend any existing maintenance obligations.
Applying for maintenance during divorce proceedings
The Divorce Act, No. 70 of 1979, allows a person to apply for an interim order at the same court in which they instituted divorce proceedings, in which the court is requested to grant an order for interim maintenance for both the applicant and their children, including a contribution towards the applicant’s legal costs.
The duty to maintain a child exists irrespective of whether the child’s parents are unmarried or if the child is an adopted child. The duty also extends to anyone who is responsible to raise the child and, according to legislation, every child is entitled to reasonable maintenance to provide for food, clothing, dental and medical care and education and the constitutional right of adequate housing.