All you need to know about South African law on child maintenance duties

When it comes to our children, strong commitment and love aren’t negotiable.  Unfortunately, not all parents honour this duty, specifically their legal duty to maintain the well-being of their children.

Considering this, the child maintenance system ensures that all parents honour their duty to maintain their children.

The South African government recognizes the matter and ensures that all biological parents or the people given the duty to maintain young ones do so without failure.

All minors (individuals below 18 years of age) in Mzansi must be taken care of according to the Maintenance Act, 1998. Children need a lot of things as they grow up, which they have to get from the person taking care of them.

The common child maintenance list of expenses is made up of the following:

  • Basic needs, including a proper place to stay, food to eat, and proper clothing
  • Healthcare
  • Education
  • Entertainment

The law recognizes the people who have the duty to care for the well-being of a particular child. The individuals may include the following:

  • The biological mother and father of the kid(s) irrespective of whether they are married or never did, have gone through separation or divorce.
  • The biological grandfather and grandmother of the kid if the biological parents are unable to take care of their kid(s).
  • Individuals who have been given the duty to take care of the child. The individuals could be adoptive parents, legal guardians, or grandparents from either side.

Child maintenance procedure in South Africa

The process of applying for child upkeep is simple. The application is usually made at the maintenance court, which is found at the Magistrate courts here in Mzansi. You need to have the following forms when applying for child support:

  • A valid Mzansi identification
  • The kid(s) birth certificate
  • Proof of Mzansi residence
  • If legally divorced, carry the divorce settlement
  • Have evidence of monthly earnings and expenses
  • Copy of your bank statements for the last three months
  • Individual details of the person supposed to take care of the kid(s)
  • Duly filled maintenance forms

Which child maintenance forms do you need?

The following are the maintenance court forms that must be filled when applying for kid(s) upkeep at the magistrate’s office. Remember that the forms can be obtained from the magistrate’s office, a family lawyer, or downloaded from online sources.

  • Application for Maintenance Order – J101E
  • Substitution or Discharge of Existing Maintenance – J107E
  • Application for Suspension, Amendment or Rescission of an Order for the Attachment of Debts – J458E
  • Complaint Form Arrear Maintenance – J470E
  • Consent and Maintenance Order – J214E
  • Application for Variation – J256E
  • Application for Setting Aside of a Warrant of Execution – J435E

How do you apply for child support?

The following is the simple process you will have to go through.

  1. Once you submit the above details at the magistrate’s court, they will be taken to the maintenance office. While at the office, they will be scrutinized before being registered.
  2. After successful registration, you will be given a reference number.
  3. The person who should pay upkeep (the respondent) will then be summoned to go to court on a specific date so that the matter is discussed. The summon is done using a letter.
  4. The magistrate will then scrutinize the details submitted before making an order to the respondent.
  5. If the respondent does not adhere to the order issued by the magistrate, they must go to court. The parties to the case with their respective witnesses will present evidence that will be heard in court.
  6. If the respondent is found responsible for taking care of kid(s) maintenance, he or she must pay towards the same. Legal action will be made against them if they fail to pay.

What happens if a parent defaults child maintenance payment?

It is illegal for someone to default in taking care of their kid(s), especially if the court has ordered them to do so. In such a scenario, the main caregiver of the kid(s) should act as follows:

  • Go to the maintenance office and make a formal complaint.
  • Ensure you have all proof of all payments made and the amount yet to be paid.

The main caregiver can also ask the court to get the amount that should be paid for upkeep from the respondent if they are unwilling to pay. This can be done through direct deduction from their salaries.

The respondent will also get the chance to explain why they have failed to honor the order. If their evidence does not satisfy the court, and they still fail to pay, the following action can be taken against them. These actions are backed by the Maintenance Amendment Act (Act No.9 of 2015).

  • Jailed (not longer than three years) or pay a specified amount of fine.
  • Order blacklisting by credit bureaus.
  • Interest being added to the upkeep payment still owed.
  • Have their assets and earnings attached to child support payment.

If the main kid(s) caregiver feels the upkeep payment does not sufficiently cover for the kid(s) needs, they can ask for an increase. This can be done by going to the magistrate’s office and giving them the relevant details.

The person paying for maintenance can also ask for a decrease if they are straining to pay due to various financial constraints. They have to visit the magistrate’s office, where the maintenance case was heard and submit the relevant information to the maintenance officer.

Child maintenance calculator South Africa

How do you calculate child support? The determination of how much a parent, whether mother or father, needs to contribute depends on the monthly needs of the kid(s). Each parent’s total earnings also plays a big part in finding how much each is supposed to pay. The basic formula for calculating the contribution is as illustrated.

{(Parent’s gross income) / (Total gross income of both parents)} * {(child’s needs) / 1} = R00.00 (parent’s contribution)

Change is inevitable, and the kid(s) needs are bound to change. The financial ability of the parents is also likely to change by increasing or decreasing. Whichever the change, you are allowed to go to the maintenance office and request any of the following, depending on the needs.

  • Change the current order
  • Amend an existing order
  • Reduce a current order
  • Make a new maintenance order
  • Set aside an existing maintenance order

It is also important to note that remarrying and having a second family does not give you the right to neglect the first family because responsibilities have increased. You must continue paying for kid(s) maintenance as before.

Child maintenance South Africa fathers rights

Section 20 of the Children’s Act No. 38 of 2005, states that a father is an individual who has total parental duty and rights concerning the kid(s). The rights are applicable in the following instances:

  • If the man is married to the mother of the kid(s).
  • Was married to the mother of the kid(s) during the time of conception, birth, or any time between the conception and delivery of the kid(s).

The biological father of the kid(s) is entitled to custody rights, care, contact, and guardianship. It is important to note that contact is not dependent on whether upkeep is being paid or not since it is not measured in monetary terms. If the biological father of the kid(s) has had severe cases of being abusive and does not seem to change, the mother can seek a court order to terminate the father’s contact with the kid(s.) He can also become the main caregiver and offer primary residence to the kid(s) if the biological mother is a drug or alcohol addict and has a bad influence on the young ones.

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