How to claim maintenance

When family fails…

Claiming maintenance in South Africa
Sonke Gender Justice and the Human Rights Commission published a report titled “the State of South Africa’s Fathers” on the 6th of July 2018. The statistics revealed therein are shocking, amongst other thigs the report reveals that in 2017 the biological father of roughly 61.8% of South African children were not present in their children’s lives”. Unfortunately, the old saying that “absence makes the heart grow fonder” doesn’t seem to apply here because many of these fathers fail to provide any regular financial support to their children.

Maintenance is the legal duty imposed on someone (who can afford to provide maintenance) to pay money to someone in financial need for basic essentials such as housing, food, clothing, education, medical care and other similar expenses.  This duty of support exists between family members and is broader than many people think.  For example:

  • The law requires a child to be supported or maintained by both his/her parents, whether married, living together, separated or divorced;
  • A child’s maternal and paternal grandparents can also be called on to pay maintenance (if the parents can’t afford to);
  • The duty of support also extends to siblings – both full and half brothers and sisters – where the parents and grandparents are unable to provide maintenance.

The maintenance system is the system of courts which ensures that family members honour their duty to maintain children in need of financial support.  A Maintenance Court can order a parent or family member to pay maintenance so that a fair financial contribution is made towards the support of the children.

Maintenance Courts can also be used to obtain an order forcing a husband or wife to provide financial support to his/her spouse.  These Courts also assist divorced couples.  For example, an ex-husband who fails to abide by the terms of a divorce order by refusing to pay maintenance to his ex-wife can be forced to pay maintenance through the Maintenance Courts.

There are two fundamental steps to getting the financial support you need for your family:

  • If you don’t yet have a maintenance order, you will need to lodge a Maintenance Claim Form at your nearest Magistrates Court.  This will start the court process that should lead to a maintenance order being granted;
  • Once you have a maintenance order, you will need to ensure that the maintenance payments are actually paid.

Unfortunately, enforcing the payment of maintenance isn’t always as easy as it sounds.  Many fathers or husbands evade payment, or can’t be found.  For this reason, the government launched Operation Isondlo, a maintenance defaulter programme, in 2005.  A few months ago, the Western Government also announced a further blitz on defaulting fathers, and other provinces are following suit.  Now is the time to take the initiate in claiming the maintenance you are entitled to.  Non-compliance with a maintenance order is a criminal offence and the police have now been instructed to take proactive steps to arrest maintenance defaulters.

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