Last year I posted about the new child maintenance law and I received an overwhelming amount of e-mails and comments from readers seeking advice. I felt terrible, because I was not qualified to give them the answers they so desperately needed – but now I can…
Barry Greyvenstein is a practicing family law mediator & trainer (accredited by the South African Assoc. of Mediators or SAAM) from Family Justice and also owns a private mediation practice, and he was kind enough to answer some of the most frequently asked questions regarding child maintenance in South Africa.
Q 1: I want to take the father of my kids to maintenance court but he is not cooperative when it comes to giving me his address, his relatives and friends are also not willing to share the information. What can I do in this situation? Can I proceed without his residential address?
Q 1 Answer: Unfortunately the father’s home or work address is a mandatory requirement as summons cannot be served nor any court proceedings started without this information. Most tracing companies work on a no-find-no-pay basis and cost around R250-R400 per trace. The problem is that the courts are inundated with cases and that movement is usually very slow. Now bear in mind that 70% of all maintenance orders are defaulted on in the first year! This type of case is perfect for mediation as we find that most instances of non-payment have at its root a non-monetary conflict which can be resolved through a cooperative settlement process.
Q 2: The father of my child has been unable to pay maintenance due to being unemployed. His parents are, however, quite well off. They have never contributed financially towards our daughter… Is it not his parents’ responsibility to help me if he does not have an income?
Q 2 Answer: Correct, the duty to support follows the blood line through the parents up to the grandparents (and beyond)
Q 3: The father of my child has not been able to hold down a permanent job for longer than a year. Since she was born every year he would pay only 3 or 4 months, he has never paid a full year. Throughout the past 8-years he’s been in arrears, but for the latest, he hasn’t been giving anything since May 2015 until now. He has 3 children by different woman and he is supporting the other two, what do I do? Can I do something about the arrears?
Q 3 Answer: The arrears remain payable until it has been settled in full, and interest is calculated at 15.5% p/a (subject to the in duplum rule which holds that the interest may not exceed the capital amount). The alternatives are to approach his parents for support, to have his assets attached, to have his emoluments attached at his currents place of work or even to have him imprisoned for non-payment. The efficacy of court proceedings remain problematic.
Q 4: With my experience maintenance investigators and prosecutors are corrupt. You don’t have an attorney your case will not be heard they work together and they are being bribed by the fathers who don’t want to support their children.” – in your professional experience, is this true?
Q 4 Answer: There are definitely cases of corruption though I would not want to create the impression that this is very common. Most court staff work under extremely stressful conditions with insufficient support. The real problem here is the disconnect between the available capacity, the need for justice and a judicial system which is not geared to provide in the needs of the public.
Q 5: My grandson has been in foster care with me since birth as my daughter has a personality disorder and cannot raise him and the father is unknown. To what extent is my daughter’s father liable to contribute financially? My daughter is unemployed and cannot hold down a job due to her condition, placing the burden of providing for my grandson solely on me.
Q 5 Answer: The father shoulders the responsibility in the first instance, though a part of the responsibility falls to the grandparents. Should the father not be able to contribute it is possible to claim for maintenance and arrears maintenance from his parents. You are also entitled to recover arrears from the father.
Q 6: How do you go about getting maintenance from your child’s father if they refuse to pay? What is the process?
Q 6 Answer: One can approach the clerk of the court (or assistant registrar) at Maintenance Court, Children’s Court, Family Court or Civil Court to institute proceedings against the father. A variety of remedies are available here, including attaching assets, attaching emoluments (e.g. a salary) or even arresting the father. The efficacy of these remedies are however up for debate – especially so when approaching the court without a legal representative. At the same time, should the reason for non-payment be the result of cash flow problems, using legal representation would erode the relatively small amount of finances available to pay for child maintenance. The use of an Alternative Dispute Resolution mechanism like mediation provides the best results for a relatively small amount of money.
Q 7: If the father does not have a job, does this really mean that he is not obliged to pay maintenance? That is quite unfair on the mother, is it not?
Q 6 Answer: The obligation to maintain ones children never goes away. Should he come into money at a later stage or become employed, the mother can recover the skipped payments at interest. In practical application it serves well to keep in mind that you cannot get blood from a stone.
Q 8: If your child’s biological father has never paid child maintenance or has never been in the child’s life – can you file for abandonment? If he refuses to sign his rights away, how do you go about having him forced to relinquish his right and be removed from the birth certificate? In this case the woman’s new husband is wanting to adopt the child.
Q 8 Answer: The concept of ‘signing one’s rights away’ does not fit with SA family law. My first question would be whether the father qualifies for rights and responsibilities under Section 21 of the Children’s Act (http://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf). Should the father agree to the adoption it can be filed with the High Court, though this process is expensive and usually takes around 2-4 years.
Q 9: Can you go to jail for not paying child maintenance?
Q 9 Answer: Absolutely, failure to maintain one’s child can indeed land you in jail. Bear in mind that jailing one person costs the tax payer R107,000 per annum and that the father has limited (if any) means of earning an income while in prison.
Barry recently attended the South African Law Reform Commission’s meeting on family dispute resolution. The consensus was that the traditional (i.e. litigative) approaches are not able to provide the access to justice as envisaged in the constitution. From the meeting’s discussions it seemed that mediation is set to become mandatory in matters of maintenance and care and contact disputes (custody and access). It also appears as if voluntary arbitration in family matters may be implemented to complement the existing judicial apparatus. In short – the courts are inundated with maintenance cases and the demand for resolution significantly outstrips the capacity available at the courts.
Here are some statistics…
- 67% of children in SA grow up without both parents in the household (i.e. divorced, unmarried, death of one of both of the parents)
- 58% of children in SA are born to unmarried parents who do not marry during the child’s childhood
- 70% of maintenance orders are defaulted on within the first 12 months (as mediator I believe that this is due mainly to the fact that people do not respond positively to court orders where they did not participate in the decision making process)
- The key variables in family law – divorce rate, % children born out of wedlock, occurrence of domestic violence, payment of maintenance – bear little significant correlation to either socio-economic or demographic factors and occur in all sectors of South African society
Just a final word on maintenance and the parent-child-relationship:
- The right to have a relationship with one’s child and the child’s right to be maintained are mutually exclusive and do not influence one another. Whether the father pays maintenance or not, both father and child have a right to a relationship.
- Our laws consider the child’s right to be maintained as fundamental, and child maintenance receives a preference over other payments
- If no money is available to pay child maintenance, assets may be liquidated to pay for the child’s expenses
- Excluding a parent from the child’s life during the formative childhood years leaves a lasting mark on childhood development. It also impacts significantly on matters such as partner selection and parenting ability as it effectively removes the role of husband/wife/father/mother from the child’s reference framework.
The above are subject legal procedural changes which I may be unaware of and the info is provided from my experience as a practicing family law mediator (accredited by the South African Assoc. of Mediators or SAAM).
Family Justice offers training in the field of Family / Court Annexed Mediation – if you want to be part of this exciting new development in our law and you want to get a head start, now is the time to get the necessary qualifications and become an accredited mediator. For more information – click here.
To contact Family Justice:
Tel: 0860 877 877 or 011 731 8235
Fax: 086 571 7899
I would just like to thank Barry for reaching out and offering his time on this very sensitive subject.