DAY 14: HOW TO: apply for a maintenance order

How can you practically empower yourself, or the women and children you know, during this year’s 16 days of Activism? The Mail & Guardian‘s “HOW TO” guide will tackle a different area each day, including suing for maintenance, applying for a social grant and getting an interdict against an abusive partner.

How to apply for a maintenance order
Maintenance is the obligation to provide another person, such as a child, with: housing; food; clothing; education; medical care; and means that are necessary for providing the person with these essentials.

It is the legal duty of both parents, whether married, living together, separated or divorced, including parents who have adopted a child, to support their children. Read the Maintenance Act, 1998 (Act 99 of 1998). Grandparents could also be required to support the children, irrespective of whether the children’s parents were married to each other. This, however, varies from one case to another.

The parent who is looking after the child has a right to apply to a maintenance court for the other parent to pay support.

If the children are not living with the mother or the father, the person who is looking after them (such as grandparents) can also apply for maintenance from the parents.

Once there is a court order instructing a parent to pay child support, it is a criminal offence not to pay.

It is important to note that the duty to pay maintenance and getting rights of access to the children are two entirely separate matters and one has no relation to the other. Also, children of either party do not influence the duty to support.

What expenses can be claimed?
You may claim reasonable support that is necessary for providing the child who has a right to maintenance with a proper living and upbringing. This includes providing necessities such as food, clothing and housing, as well as paying for a proper education. The court may also order the father to contribute to the payment of laying-in expenses and maintenance from the date of the child’s birth up to the date on which the maintenance order is granted. The court may also grant an order for the payment of medical expenses, or may order that the child be registered on the medical scheme of one of the parties as a dependant. To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.

Steps to follow when applying for maintenance:

There are special maintenance courts at every magistrate’s court. Maintenance officers work in these courts and help people who want to apply for maintenance. They also deal with applications to increase or reduce maintenance payments. You will need to go to the maintenance office at the magistrate’s court in the area in which you live and fill in Form A: Application for a maintenance order.

Ensure you have the following documentation with you when you approach the court:
1. The name and address of the person against whom the order is being made and the details of where they work (without this information the court is not able to serve a summons on the person);
2. Your identity document;
3. The children’s birth certificates;
4. A letter of attendance from the school principal for any school-going child;
5. A copy of the divorce order (if applicable);
6. Proof of your income (such as a salary slip); and
7. Proof of all your monthly expenses, such as receipts for food purchases, school fees, clothing, electricity and or rent/bond payments, et cetera.

Once you have filled in the application, the maintenance officer will provide you with a reference number and set a date on which you must return to the office. The maintenance officer will then send a summons to the person against whom the order is being made, instructing him or her to appear at the office on the set date.

On that date, both parties must go to the court’s maintenance office to determine how much maintenance must be paid. The maintenance officer will assist you, taking into account how much money you earn and your monthly expenses, as well as the income and expenditure of the other parent.

If the person against whom the order is being made says that they are not the parent of the child, you need to ask the court to order a paternity test.

If both parties agree to how much maintenance should be paid, a magistrate will review the relevant documentation and will then make an order of court, signed by both parties. This says that the other party must pay the agreed amount of money every week or every month.

However, if the parties cannot reach agreement, or if the other party does not come to the maintenance office on that date, the case will go to the maintenance court, where evidence from both parties and their witnesses will be heard.

If the court finds the person liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how maintenance payments must be made. The court can order maintenance money to be paid in one of the following ways:
1. At the local magistrate’s office or any other government office designated for this purpose;
2. Into the bank account designated by the person concerned;
3. Directly to the person who is entitled to the money; or
4. 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 Maintenance Act, 1998 (Act No. 99 of 1998).