“My ex-husband and I divorced during January 2018 and in terms of the deed of settlement my ex-husband under took to pay a monetary amount of R1 500.00 per month towards our minor child’s maintenance plus keep the minor child on his medical aid. The monetary contribution in the amount of R1 500.00 per month has now become insufficient as from January 2019 the minor child’s expense nearly doubled. I have discussed an increase of the monetary contribution with my ex-husband, who has indicated that he refuses to increase the said amount and is keeping to the existing court order. What can I do?”
Currently there is an epidemic in South Africa, in terms of which very few parents contribute financially towards the maintenance of their minor children. In most instances minor children are either left with the parental grandparents by the parents without contributing a single cent, or in some instances in a single headed house hold, where the father has left the mother to maintain the minors by herself.
The Maintenance Act assists parents and/or guardians where the minor children are resident to apply to court and have the parent and in some instances the grandparents of the minor to contribute to the maintenance of the minor child.
Who has a duty to pay maintenance?
All parents, whether married or not, living together, separated, or divorced and parents of adopted children, are required to support the financial needs of their children.
- The biological grandparents may need to pay maintenance if the child’s parents can’t pay.
- Any person who’s responsible to raise the child, for example, a legal guardian, adoptive parents and grandparents of the child.
Enforcing a maintenance order:
If a parent who must pay maintenance doesn't pay, the primary caregiver of the child can do the following:
Lay a formal complaint at the maintenance office.
- Take along records of payment and non-payment as it shows how much is owed.
- Ask the court to get the maintenance directly from their employer.
The court grants permission to the defaulting parent to explain why they didn't pay. However, without a good reason, the parent will either need to pay all the outstanding maintenance or they’ll go to jail.
Increasing or decreasing the amount of maintenance:
If you're the primary caregiver of the children, you can ask for the amount that you’re paid for maintenance to be increased if it’s not enough to provide for the children.
You'll have to complete an application form at the Magistrate’s court and provide a statement detailing your income and expenditure.
If you're the maintenance payer and can no longer afford to pay the agreed maintenance amount, you can apply for a decrease order at the Magistrate’s Court that your maintenance order was made at. You’ll have to complete the relevant form, submit a detailed income and expenditure statement and submit it to the maintenance officer.
Take note that a maintenance order is valid until it is set aside or varied in Court, and as such you must never out of your own movement cancel payments in terms of the maintenance order without first obtaining a court order to that effect.
According to the Maintenance Amendment Act (Act No.9 of 2015) parents who default on their maintenance order can be held liable in the following ways:
- be blacklisted at credit bureaus,
- be jailed for a period not longer than 3 years,
- be imprisoned with the option of paying a fine,
- have interest added to their maintenance arrears, or
- have their property or salary attached.
If the parent who's liable for maintenance can't be reached, the court can issue an order to a cell phone service provider to provide the court with their contact details.
Therefore it should be mentioned that the process in the Maintenance Court is designed to be informal and with the maintenance prosecutor assisting not only the court but also both the applicant and the respondent, there is little need for the services of an attorney. You always have the choice to employ the services of an attorney should you wish and if you cannot afford same Legal Aid may also be approached.
It is however important that you ask for assistance in drafting your list of income and expenditures as well as that of the minor child as that will be the basis on which you will apply for an increase in the maintenance monetary contribution.