In the event that a couple with children separates or goes through a divorce, there is ordinarily a settlement agreement or parenting plan which is entered into in respect of the children. The agreement should cover who is to pay maintenance for the minor child/children and at what rate and how it is to be paid. If however for whatever reason, there is no settlement agreement covering maintenance or a parenting plan that has been made an order of Court, a parent of a child and/or children who are primarily resident with that parent may approach their local Magistrate’s Court for a maintenance application.
Steps in an Application for Maintenance
1. Fill out an application form at the Magistrates Court in your area
These forms are also available on-line; however they will need to be commissioned, usually by the clerk of the family court/maintenance court.
2. Submit proof of your monthly income and expenses
This is a very important aspect as actual proof must be submitted; so the more documentary proof you have, the better. An example of this would be your salary slip, any invoices from the child’s school, rental payments, grocery slips, petrol slips, debit orders, bank statements to show monthly payments made via EFT, and any other expense you may have. You need to prove that what you are requesting as maintenance is the actual expenditure of the child.
3. The court will then look at what you have submitted and if it deemsthe application to be fair and necessary, a summons will be issued for service on the party you are claiming maintenance from
You will be given a date to attend Court again, and the party who you are summonsing to pay maintenance will have to attend the same hearing.
4. If the individual agrees to pay the amount requested, the magistrate will agree to allow the matter to continue without a court interview
This means that the other party could simply agree to pay the amount of maintenance you have applied for, or an agreement could be reached, one in which you accept.
5. If the individual does not agree to pay, or agrees but does not make the payments, he or she will be summoned to court again, and the sides of both individuals will be heard. The court will then enforce the order to pay maintenance
This means that an enquiry is held in respect of the financial situations of both parents in order to determine the order that the Court will finally make. It is good to remember that if the other party is working, you may apply to have the maintenance deducted from his/her salary every month, especially if there is a history of non-payment of maintenance.
What can I claim Maintenance for?
It is important to remember that both parents are liable for maintaining the child, whether the child is in their care or not. The child’s best interests are always of paramount importance when it comes to maintenance and the Court does also consider what life style the child has become accustomed to when deciding how much maintenance should be paid.
Maintenance can be put towards all or some of the living costs of the child or children. These living costs include but are not limited to:
- Lights and water
- School fees
- Medical aid
- Consumables like toiletries, nappies, soap, shampoo etc.
- Extra-mural lessons if the child or children have a hobby, the clothes and equipment needed and bits and pieces like competition entry fees etc.
- Counselling to deal with the separation or divorce (if necessary)
- University fees
- Spending money
- A car when the child needs and is ready for one
- Money towards school trips, new sports gear and equipment, holidays and more
Can I increase the Maintenance amount Awarded?
If an increase in maintenance is required after a year or two, you can also approach the Magistrate’s Court for an application to increase the maintenance. Here it is also important to remember to supplement your application with all the necessary proof/documents to prove that the increase is valid and required.
Once your child reaches the age of majority (18 in South Africa), and the child is not self-supporting yet, the child can claim maintenance against the parents in their own name.
In this age where divorce and separation is so common, understanding what you need to succeed in your maintenance claim is vital. Plenty of time can be wasted when you attend on the hearing date without the necessary documents to prove your claim, and this leads to delays which can take months to remedy. Be prepared from the first day that you make your claim.