In terms of the Children’s Act 38 of 2005, both the biological father and mother of a child have full parental responsibilities and rights in respect of the child. Section 18 of the Children’s Act provides for those parental responsibilities and rights, including care for the child, maintaining contact with the child, acting as a guardian of the child and contributing to the maintenance of the child.
The maintenance of a child is a serious legal obligation. Both parents must ensure that the child has proper living conditions, food, clothing, medical care and education. Failure to comply with a maintenance order is a criminal offence that may result in a fine or imprisonment of up to three years or both.
An application for maintenance can be made at any Maintenance Court situated in the area where the applicant works or resides or where the child on whose behalf maintenance is claimed resides. Maintenance Courts, located within Magistrates Courts, have maintenance officers who have been appointed to assist with maintenance applications.
“Form A: Application for Maintenance Order” (form J101) needs to be completed. This can be obtained from the maintenance officer. A maintenance application must include the following documents:
· Certified copy of your ID
· Certified copy of the child’s birth certificate
· Certified copy of your marriage certificate (if married)
· Certified copy of court order / divorce settlement (if divorced)
· Three months’ bank statements
· Proof of monthly expenses
· Three months’ payslips
· Proof of residence
Upon submission of your application, the maintenance office will provide you with a court date and summons will be served on the other party (the respondent). The respondent may agree to pay the requested maintenance, in which case, the court will grant a maintenance order without the parties needing to appear. If the respondent opposes the maintenance application, both parties will have to appear in court to present their cases.
The Maintenance Act 99 of 1998 sets out the factors a court will consider when making a maintenance order. The court will take into account that the duty to support a child is an obligation upon both parents, whether the child is born in or out of wedlock, or of a former or subsequent marriage. It will also consider the financial position of each parent and will apportion the maintenance obligation accordingly.
What happens if one parent is unemployed and, therefore, unable to contribute to the maintenance of the child? The court will take this into consideration, but it will not simply release the defaulting parent from their obligation. It may request proof of unemployment and further proof that efforts are underway to find employment. If proceedings against the defaulting parent are already underway, the court may postpone proceedings to allow time for employment to be found. Alternatively, the court may order the attachment and sale of the defaulting parent’s property in order to fulfil their maintenance obligation.
There is no particular age limit for a child entitled to maintenance. This parental responsibility is normally extinguished when a child becomes self-supporting, for example, when he/she finds employment. In cases where a child is unable to support him/herself, perhaps due to a physical or mental disability, the duty to support will continue for the lifetime of the child.