Maintenance

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

Maintenance orders:

Links supplied by South African Government Services

Application for a maintenance order

Description

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

Who must provide maintenance?

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

A child must be supported or maintained by

  • his or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or
  • his or her grandparents, whether or not the child’s parents were married to each other. However, this varies from one case to another.

The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following two conditions are met:

  • The family member who claims support is unable to maintain himself or herself.
  • The family member from whom maintenance is claimed is able to afford the maintenance that is claimed.

What expenses may be claimed?

You may claim reasonable support that is necessary for providing the child or other person who has a right to maintenance with a proper living and upbringing. This includes providing necessities such as food, clothing and housing, as well as paying for a proper education. The court may also order the father to contribute to the payment of laying-in expenses and maintenance from the date of the child’s birth up to the date on which the maintenance order is granted. The court may also grant an order for the payment of medical expenses, or may order that the child be registered on the medical scheme of one of the parties as a dependant. To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.

Your view of the other parent’s behaviour has no effect on your children’s right to maintenance. You still have to pay maintenance, even if the other parent

  • remarries;
  • is involved in another relationship;
  • does not allow you to see the children; or
  • if either party later has more children.

Your duty to pay maintenance and your right of access to your children are two entirely separate matters and one has no relation to the other. Furthermore, children of either party do not influence the duty to support. However, the amount of maintenance to be paid may be amended by the court if either of the parties should bring such an application.

For more information, go to the Department of Justice and Constitutional Development. 

Steps to follow

  • Apply for maintenance at the magistrate’s court in the district where you live.
  • If you are in doubt, your local court will tell you at which court to apply for maintenance.
  • Go to the relevant court and complete and submit Form A: Application for a maintenance order.
  • In addition to the completed form, submit proof of your monthly income and expenses, such as receipts for food purchases, electricity and/or rent bill payments.
  • The court will set a date on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
  • A maintenance officer and an investigator will investigate your claim and look into your circumstances.
  • The court will serve a summons (a letter instructing a person to come to court) on the respondent (the person against whom the claim is brought) to appear in court on a specific date to discuss the matter.
  • The respondent then has a choice between agreeing to pay the maintenance as claimed, or contesting the matter in court.
  • If the respondent agrees to pay the maintenance as claimed, a magistrate will review the relevant documentation. He or she will then make an order, and may decide to do so without requiring the parties to appear in court.
  • If the person who is allegedly liable to pay maintenance does not consent to the issuance of an order, he or she must appear in court, where evidence from both parties and their witnesses will be heard.
  • If the court finds the person liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how maintenance payments must be made.
  • The court can order maintenance money to be paid in one of the following ways:
    • At the local magistrate’s office or any other government office designated for this purpose
    • Into the bank or building society account designated by the person concerned
    • Directly to the person who is entitled to the money
    • By means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee’s salary, in accordance with the new Maintenance Act, 1998

Legal framework

Maintenance Act, 1998 (Act No. 99 of 1998) and related Regulations

Service standard

  • You will be treated equally, humanely and with dignity.
  • Complaints will be treated as quickly and as efficiently as possible.
  • There is no prescribed time frame for this service. The entire process, from submitting your application to receiving your first maintenance payment, may take several weeks, depending on the cooperation of both parties.
  • Witnesses who attend the proceedings, including the person who claims maintenance, are entitled to prescribed subsistence and travelling allowances. However, the court will decide at its own discretion whether such an allowance will be paid to the person against whom a maintenance order may be made.
  • The person who is claiming maintenance must apply to the maintenance officer for the payment of witness fees.

Cost

The service is free.

Forms to complete

  • Form A: Application for Maintenance Order
  • Form B: Substitution or Discharge of existing Maintenance Order
  • Form C1: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998 (Act No. 99 of 1998)
  • Form C2: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998
  • Form D: Notification to admit Statements by Witnesses
  • Form E: Maintenance Order in terms of section 16 of the Maintenance Act, 1998
  • Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance Order was made
  • Form G: Consent and Maintenance Order in terms of section 17 read with Section 16 of the Maintenance Act, 1998
  • Form H: Order by Default and Notice in terms of Section 18 read with Section 16 of the Maintenance Act, 1998
  • Form I: Application for Variation/Setting Aside of an Order by Default in terms of Section 19 (4) of the Maintenance Act, 1998
  • Form J: Notice in terms of Section 19 of the Maintenance Act, 1998
  • Form J: Application for Enforcement of Maintenance or other Order in terms of Section 26 of the Maintenance Act, 1998
  • Form L: Warrant of execution against Property in terms of Section 27 of the Maintenance Act
  • Form M: Application for Setting Aside of a warrant of Execution in terms of section 27(3) of the Maintenance Act, 1998
  • Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments in terms of Section 28(2) of the Maintenance Act, 1998
  • Form O: Notices to and by Employer in terms of Section 29 of the Maintenance Act, 1998
  • Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts in terms of Section 30(2) of the Maintenance Act, 1998
  • Form Q: Complaint of Failure to Comply with a Maintenance Order for purposes of Section 31(1) of the Maintenance Act, 1998

Contact details

Contact your nearest Magistrate’s Office, Maintenance Court, Family Court or Maintenance Prosecutor or Maintenance Investigating officer

Paying maintenance

Description

Maintenance is the obligation to provide another person, e.g. a minor child, with shelter, food, clothing, education and medical care; to or to supply the means that are necessary for providing these essentials. This duty is based on blood relationship, adoption, or the fact that the parties are married to each other.

The maintenance officer will consider the children’s needs and help you to calculate how much maintenance you should pay. Each parent will make a fair contribution in proportion to his or her income.

Who should pay maintenance?

A child should be supported or maintained by

  • his or her natural or adoptive parents, regardless of whether they are married, living together, separated or divorced or not; and
  • his or her grandparents, regardless of whether the child’s parents were married to each other or not. However, this can vary from one case to another.

The duty to support a child exists in the following cases, and in the following ways:

  • In the case of a child born in wedlock, both parents have a duty to provide support.
  • In the case of a child born out of wedlock, both parents have a duty to provide support.
  • In the case of a child whose parents are deceased, the estate must provide support, regardless of whether the parents were married or not.
  • In certain cases the grandparents or siblings of the child have a duty to provide support.

The duty to support a family member is not limited to supporting a child. Any person, irrespective of his or her age, can ask support or maintenance from any family member if:

  • The family member who is claiming support is unable to maintain himself or herself.
  • The family member from whom maintenance is claimed can afford to pay the amount that is claimed.

You can pay maintenance by using any of the following methods:

  • Garnishee order: the company that you work for deducts the money directly from your salary.
  • Cash payment: you go to the court and pay the money over the counter.
  • Direct payment into a bank account: you deposit the money in the bank account of the person who is entitled to it.

Both the payer and the recipient of the maintenance money must always inform the court if their bank account details change, because in such a case a new court order must be issued.

If the maintenance money is not paid on the specific date, action will only be taken against the person who is responsible for payment if the recipient complains to the maintenance officer and makes a statement under oath. In cases of non-payment the maintenance officer at the local magistrate’s office should therefore be approached as soon as possible.

For more information go to the Department of Justice and Constitutional Affairs

Steps to follow

  • The court order must state the method of payment that the payer has chosen.
  • The steps for the various methods of payment are as follows:
  • If you pay by means of a garnishee order
  • the company that you work for deducts the money directly from your salary
  • If you make a cash payment,
  • go to the court and pay the money over the counter.
  • If you make a direct payment into the bank account,
  • deposit the money directly into the bank account of the recipient, stating the reference number that the court has given you; and
  • fax proof of payment (the deposit slip or receipt) to the court.

Legal framework

Maintenance Act, 1998 (Act 99 of 1998) and related Regulations

Service standard

  • You will be treated equally and humanely, with dignity and respect, and as quickly and efficiently as possible.
  • If necessary, you can complain to the
  • Maintenance Investigator;
  • Maintenance Officer;
  • Court Manager;
  • Regional Head at the Centre of Service Excellence;
  • National Department of Justice and Constitutional Development’s Project for Maintenance, or
  • Directorate: Gender Issues.

Cost

The service is free.

Forms to complete

Form B: Substitution or Discharge of existing Maintenance Order

Form E: Maintenance Order in terms of section 16 of the Maintenance Act, 1998

Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance 

Form G: Consent and Maintenance Order in terms of section 17 read with Section 16 of the Maintenance Act, 1998

Form H: Order by Default and Notice in terms of Section 18 read with Section 16 of the Maintenance Act, 1998

Form I: Application for Variation/Setting Aside of an Order by Default in terms of Section 19 (4) of the Maintenance Act, 1998

Form J: Notice in terms of Section 19 of the Maintenance Act, 1998

Form K: Application for enforcement of maintenance or other order  in terms of Section 26 of the Maintenance Act, 1998

Form L: Warrant of execution against Property  in terms of Section 27 of the Maintenance Act

Form M: Application for Setting Aside of a warrant of Execution  in terms of section 27(3) of the Maintenance Act, 1998

Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments  in terms of Section 28(2) of the Maintenance Act, 1998

Form O: Notices to and by Employer  in terms of Section 29 of the Maintenance Act, 1998

Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts  in terms of Section 30(2) of the Maintenance Act, 1998

Form Q: Complaint of Failure to Comply with a Maintenance Order  for purposes of Section 31(1) of the Maintenance Act, 1998

Application to change the amount of maintenance

Description

If the amount paid for maintenance has become insufficient, you can request it to be changed. You can also request to change the amount if you are the payer of maintenance and can no longer afford to pay the amount of money required.

For more information, go to the Department of Justice and Constitutional Development.

Steps to follow

  • If you are the person who receives maintenance:
  • Apply at the magistrate’s court situated in the district where the person who pays the maintenance lives.
  • Complete the relevant application form and submit it together with a statement of income and expenditure to the maintenance officer.
  • If you are the person who pays the maintenance but can no longer afford the amount:
  • Apply for the amendment of the order at the magistrate’s office in the district where the recipient of the maintenance lives.
  • Complete the relevant form and submit it to the maintenance officer.
  • Submit a complete statement of income and expenditure, as well as a statement explaining the reasons for the application, to the maintenance officer irregardless of whether you are the recipient or the payer of the maintenance money. The same process as when a claim for maintenance is first instituted will then be followed.

Legal framework

Maintenance Act, 1998 (Act 99 of 1998) and related Regulations

Service standard

  • You will be treated equally, humanely, and with dignity and respect.
  • Your application will be handled as quickly and as efficiently as possible.
  • Lodge any complaints that you may have with the Maintenance Investigator; the Maintenance Officer; the Court Manager; the Regional Head: Justice and Constitutional Development or the Centre of Service Excellence; the National Department of Justice and Constitutional Development’s Project for Maintenance; or with the Directorate: Gender Issues.

Cost

Unless the sheriff asks for an advance to enable him or her issue an execution order for maintenance, there will be little or no cost at all.

Forms to complete

  • Form A: Application for Maintenance Order 
  • Form B: Substitution or Discharge of existing Maintenance Order
  • Form C1: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998 (Act No. 99 of 1998)
  • Form C2: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998
  • Form D: Notification to admit Statements by Witnesses 
  • Form E: Maintenance Order in terms of section 16 of the Maintenance Act, 1998
    Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance Order was made 
  • Form G: Consent and Maintenance Order in terms of section 17 read with Section 16 of the Maintenance Act, 1998
  • Form H: Order by Default and Notice in terms of Section 18 read with Section 16 of the Maintenance Act, 1998
  • Form I: Application for Variation/Setting Aside of an Order by Default in terms of Section 19 (4) of the Maintenance Act, 1998
  • Form J: Notice in terms of Section 19 of the Maintenance Act, 1998
  • Form K: Application for Enforcement of Maintenance or other Order in terms of Section 26 of the Maintenance Act, 1998
  • Form L: Warrant of execution against Property in terms of Section 27 of the Maintenance Act
  • Form M: Application for Setting Aside of a warrant of Execution in terms of section 27(3) of the Maintenance Act, 1998
  • Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments in terms of Section 28(2) of the Maintenance Act, 1998 
  • Form O: Notices to and by Employer in terms of Section 29 of the Maintenance Act, 1998
  • Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts in terms of Section 30(2) of the Maintenance Act, 1998
  • Form Q: Complaint of Failure to comply with a Maintenance Order for purposes of Section 31(1) of the Maintenance Act, 1998

Leave a reply

4 × one =

Copyright © 2018 Bregmans | Designed By Right Click Media | Privacy Policy | Tel: +27 (0)11 646-0335 | E-mail: info@bmalaw.co.za