“My ex-husband does nothing for our child(ren). What do I have to do?”

These are words uttered by a lot of South African women at this time in life. But what I have realised in the past year is that the steps for instituting a maintenance claim are very easy and straightforward. The only two things that need to be proved is that maintenance is indeed necessary for the child and also that the person maintenance is sought from will be able to afford the amount claimed.

Many people have a narrow perception that maintenance can only be claimed for the benefit of children. This is misleading and incorrect as maintenance may also be claimed for the benefit of a spouse from the other spouse. However, this type of maintenance is a discussion for another day.

In general, maintenance may be claimed from persons who have a legal obligation to maintain a child, maintenance is calculated on an equal pro rata basis from both parents, in other words, parents are both 50/50 liable to maintain the child if they are both in a financial position to do so. Children have the right to claim maintenance from their parents and a wife may claim maintenance from her husband and vice versa. The Maintenance Act also makes provision for children to claim maintenance from their biological grandparents if the parents cannot afford maintenance.

In addition, if a parent/any person is in custody of the child, he/she may also claim maintenance from the other parent who is responsible or liable to pay maintenance. In order to succeed with a maintenance claim, one needs to convince the court that monetary maintenance is indeed needed in order for all the needs of a child to be covered.

The Maintenance Act 99 of 1998 regulates the procedures to be followed when claiming for child maintenance. The documents which need to be submitted to the Maintenance Clerk are:

• The Identity document, birth certificate of the child, bank statements of both the parents, list of the expenses of the child, list of expenses of both the parents, Proof of applicant’s income and expenditure, Name and surname of parent/person responsible for the payment of maintenance money, Physical/work address of the parent/person responsible for the payment of maintenance money if available, proof of residence/affidavit;
• The maintenance clerk will then assist you in completing the relevant forms;
• The Maintenance Clerk will refer your application to the Maintenance Officer for final assessment of your documents.
• After assessment, the registration of the application and reference number will be issued.

After this whole procedure of submitting the necessary documents, the Maintenance Officer will call upon the parties to meet for the purposes of conducting an investigation into the maintenance application brought forward. The Maintenance Officer will then conduct an investigation/financial enquiry, or conduct mediation with both parties present. If the parties reach a settlement, the settlement shall be made an order of the court, but if one party disputes the maintenance sought, a court date shall be set for argument.

There are two manners in which maintenance may be paid, either directly into the claimant’s account or to the nearest maintenance official.