South Africa’s Maintenance Act is the law that was put in to place in order to safe guard children affected by divorce. Child maintenance involves the ongoing obligation to make regular payments to sustain a child/children, and the amount payable is decided upon by the court presiding over the divorce case. The amounts decided upon have to be paid monthly and failure to do so can result in legal action being taken. However in order to secure maintenance, it involves obtaining a maintenance order from the court and then discharging it. Although initially the amount dictated by the court can be increased or decreased should there be the need.
It is important to note that South Africa’s Maintenance Act not only applies to monetary payments but in terms of the law, maintenance is money or good that a person has a legal duty to provide for the basic living expenses of his or her children. Maintenance can therefore include rent, water, electricity, food, clothes and so on and so forth. The most important thing that you need to know is that you cannot claim for maintenance once a divorce has been finalised. Therefore the claim for maintenance needs to be included as a part of the divorce order.
One thing that is commonly confused in terms of the maintenance is the age at which parents are required to stop paying maintenance. Generally a maintenance order ends when a child becomes self providing or when the child reaches 18 years of age.
However, this can vary depending on a number of factors:
1. Should a child leave school before he/she is 18 and get a job, then the maintenance order ends.
2. Should a child be disabled and cannot support him/herself then the maintenance order will not end regardless of the child’s age
3. Should a child attend university after completing school, then the maintenance order will only end once the child reaches 21 years of age.
Maintenance does not only apply to the maintenance of a child and therefore the duty to support a family member is not limited. Any family member can ask a family member to support or maintain him or her. This is however dependant on two conditions:
- The person claiming maintenance is unable to maintain him/herself
- The member who you are claiming the maintenance from is able to afford the claim being made.
Should a person who is obliged to pay maintenance neglect to do so, you are well within your rights to make a complaint with the Maintenance Court. Once a complaint has been made, the court is obliged to get a maintenance investigator to investigate the complaint. Should the court find the complainant to have grounds, the negligent payer will have to produce evidence to support whatever reason he/she has for not paying. The maintenance officer also has the rights to obtain private financial records of the individual in question in order to ascertain their financial situation.
In South Africa, there is a common misconception that only fathers fail to pay maintenance towards their children. However mothers can sometimes neglect their payments too. The process of a divorce is painful and emotionally draining as it stands, and the challenge to obtain maintenance can just add to this pressure. It is therefore best that when you are getting divorced to speak to a lawyer that specialises in divorce and who is well aware of the legalities behind maintenance awarding and payments. This is especially necessary if you are claiming maintenance in order to support your children. For more information, you can either search online, or speak to a lawyer about your rights.