Article by: Cape Town Attorney: Ross Hendriks
Introduction
This article provides a comprehensive overview of how the South African court system operates in the context of maintenance, ensuring a thorough understanding of the entire process.
Navigating maintenance disputes can be complex, and engaging with the legal system may seem daunting. Our objective is to furnish you with the necessary information to make this process as straightforward as possible.
We will address a range of topics, from determining who is eligible to apply for maintenance to elucidating the factors considered in the calculation of maintenance payments. Furthermore, we will outline the legal procedures involved, including the application process, court hearings, and the consequences of non-compliance.
Whether you are a parent seeking financial support for your child or an individual responding to a maintenance application, this guide is designed to equip you with the knowledge required to manage your case effectively.
Types Of Maintenance
There are two types of maintenance, namely child maintenance and spouse maintenance.
Child Maintenance
While the law regarding child maintenance is straightforward, its implementation can often pose challenges. The core principle of child maintenance is that both parents share the financial responsibility for their child based on their standard of living, income, and financial means. This obligation is not limited to the father; both parents are expected to contribute according to their respective capacities. Even if one parent is financially capable of fully supporting the child, this does not absolve the other parent from contributing. Including a provision in a divorce settlement agreement that releases one parent from this duty would be against public policy and considered invalid. The principles governing maintenance also apply to children born out of wedlock, ensuring their right to support is recognized.
Does One Stop Paying Child Maintenance Once Your Child Turns 18 Years Old:
Once a child reaches 18 years of age, a parent cannot claim maintenance on the child's behalf. At that age, the child must take legal action independently to claim maintenance. Additionally, a parent cannot suspend or reduce maintenance payments if the child temporarily visits them unless there is a specific court order allowing such an adjustment.
What Happens If You Remarry?
A parent's obligation to support their child remains unchanged by remarriage. Similarly, a step-parent is not legally required to support a stepchild, and all children from different marriages are treated equally in terms of maintenance obligations. Refusing a parent access to their child does not provide a legal basis for that parent to cease maintenance payments.
Can You Amend or Appeal An Order?
Maintenance orders issued by the court are subject to amendment in response to significant changes in circumstances. A parent may request an adjustment to the maintenance amount if their financial situation alters substantially. Both parents are expected to contribute to support obligations using their income and, if necessary, their assets. If a parent lacks income but possesses assets, the court may mandate the sale of these assets to meet maintenance payments. Additionally, the law prohibits a parent from evading their responsibility by resigning from employment or enrolling as a full-time student. Should a party dispute a maintenance order, they have the right to appeal to the High Court. However, appeals do not automatically suspend maintenance payments unless the appeal challenges the applicant's liability to pay. Maintenance orders can be revised or annulled based on changes in financial circumstances.
Spousal Maintenance
Spousal maintenance is available to both men and women, but women more frequently pursue it due to historical and societal reasons. Legally, there is no automatic entitlement to spousal maintenance after a divorce. The prevailing legal doctrine is the 'clean break' principle, which encourages former spouses to achieve financial independence as quickly as possible after a divorce. However, the courts have the discretion to award spousal maintenance if deemed necessary.
During a marriage, spouses owe each other a reciprocal duty of support, provided one spouse is in need, and the other can provide. This support includes essentials such as housing, clothing, food, and medical care, adjusted according to the couple's social status, income, and cost of living. This duty of support ends upon divorce or death, with exceptions provided under the Divorce Act 70 of 1979, which allows for maintenance orders in divorce cases. Similarly, the Maintenance of Surviving Spouses Act 27 of 1990 allows a surviving spouse to claim maintenance from the deceased's estate.
Crucially, there is no statutory right to spousal maintenance. The court's discretion means it could opt not to award any maintenance, aligning with the 'clean break' principle. In situations where divorce proceedings are prolonged, or one spouse has no income, interim relief is available under Rule 43 of the High Court and Rule 58 of the magistrate's court, providing temporary maintenance until the divorce is finalized.
How To Apply For Maintenance
Step One
Download or collect an application form (J107E or J101E) at your nearest Maintenance Court. These forms are readily accessible, and court officials are generally available to assist with any questions you might have throughout the process.
Step Two
Complete the application form, providing comprehensive details about yourself, the individual from whom you are seeking maintenance, and any children involved. This information includes personal details, income information, and an outline of the expenses for which you seek support.
Step Three
After completing the application form, it is essential to gather any necessary supporting documentation, this may include proof of income, bank statements, and relevant legal documents such as birth certificates or marriage certificates.
Step Four
Once completed, submit your application along with all supporting documents to your nearest Magistrate Court; the court will assign a date for your initial hearing. It is imperative to attend this hearing, as failure to appear may result in the dismissal of your application. At the hearing, both parties will have the opportunity to present their cases, and the court will render a decision based on the evidence provided.
Step Five
The initial hearing is an Informal Inquiry which aims to mediate a settlement without court proceedings. If a settlement is reached, the Respondent signs a maintenance order that is then filed with the court.
If no settlement is achieved, a formal inquiry is scheduled before a magistrate. This follows standard civil court procedures, allowing both parties to present evidence and have legal representation if desired. After reviewing the evidence, the court decides on the maintenance amount and terms, including any provisions for future changes.
Can you Enforce a Maintenance Order?
If a respondent fails to comply with a maintenance order, there are enforcement measures are available:
One can apply for an Emoluments Attachment Order (EAO), which permits the deduction of maintenance payments directly from the Respondent's salary or wages. The court can issue an EAO and requires the cooperation of the Respondent's employer to withhold the specified amount from their earnings.
Another option is to seek the assistance of the Maintenance Officer at the Maintenance Court. The Maintenance Officer has the authority to undertake various actions to enforce maintenance orders, including seizing assets, garnishing bank accounts, or initiating legal proceedings against Respondent who fails to comply.
It is important to understand that enforcing maintenance orders can be a complex and time-consuming process. Obtaining legal advice or assistance from a professional with expertise in family law can help to navigate the enforcement process more effectively.
Cross-Border Enforcement
South African maintenance orders can be enforced internationally under the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963, provided there is a reciprocal agreement with the foreign country.
Conclusion
The legislation governing maintenance is designed to ensure that children and former spouses receive the necessary financial support. While the principles for child and spousal maintenance are well-defined, adherence to these laws and the enforcement of maintenance orders often necessitate judicial intervention. The legal system provides various mechanisms to ensure equitable contributions and compliance, reflecting the societal obligation to support dependents.
Maintenance is a fundamental aspect of family law, playing a crucial role in maintaining the financial stability of dependents. Whether you are applying for maintenance or responding to a maintenance application, it is vital to understand your rights and responsibilities.
By remaining informed and seeking appropriate legal counsel, you can navigate the Maintenance Court with assurance and ensure that your financial needs and those of your dependents are satisfactorily met.
For more information, please visit our website schoemanlaw.co.za or give us a call on 021 425 5604